State of Innovation

Patents and Innovation Economics

Disuniformity: Paper on CAFC’s Failure to Provide Clarity

Disuniformity[1], is an academic paper that concludes the CAFC has had a marked increase in doctrinal disagreement over the last few years.  The paper explains that the whole purpose of the CAFC was to provide doctrinal consistency in patent law.  Perhaps the most interest parts of the paper are on what lead to the creation of the CAFC.  Below are some parts I found interesting.

In the time leading up to the creation of the Federal Circuit, the United States faced economic recession, high unemployment, mass layoffs of scientists and engineers, and extreme inflation. P.2

Gee that sounds like today.  Think there is any correlation between weakening the property rights of inventors and a weak economy?

Other information demonstrated that the patent office was “freelancing” with respect to the standards of patentability

Can anyone say Jon Dudas?  Actually the authors are talking about the PTO in the 1970s, but obviously history repeats itself.  But David Kappos was no saint either, he got rid of the absurd “rejection equal quality” but he helped push the unconstitutional AIA.

Congress, moreover, was informed that the Supreme Court rarely stepped in to resolve inconsistencies in patent law, and might not be well equipped to even if it were so inclined. P. 3

Actually, the evidence is now overwhelming that the Supreme Court justices are not competent to review patent law cases.

The central empirical observation is a remarkable increase in decisional disagreement among Federal Circuit judges – an observation we interpret as likely to reflect a decrease in doctrinal uniformity – over the past several years. P. 9

The main cause for this lack of uniformity is the Supreme Court’s decision to get involved in patent law cases and their complete incompetence in this area.  If you read their recent cases on point, SCOTUS has stated that only inventions that are black magic and not marketable should obtain patents.  Another problem is appoint none patent attorneys and people without a scientific or technical background to the CAFC.

In other words, the rate at which judges were writing dissents had reached a point where it was higher than the rate at which panels were unanimous in precedential opinions. P. 13

The first is that the Supreme Court has been positively discouraging doctrinal uniformity in patent law, and encouraging legal uncertainty. P. 18

Here the authors hint at the real cause for the problem.  But more broadly we have a fight going on in this country about whether we should even have property rights and no coherent theory of property rights.  See the Supreme Court’s decision in Kelo v. City of New London.

Perhaps one of the earliest examples of this is presented by Court’s 2005 decision in eBay v. MercExchange.  By pretty much any measure eBay reduced the uniformity of application of remedies law to patent cases, and encouraged judicial discretion in making remedy decisions. P. 18

The net effect of decisions like eBay, KSR and Global-Tech is to reduce the uniformity of patent doctrine and to increase the decisional space available to judges hearing patent cases and patent appeals. P. 19

As Judge Rader observed, the Federal Circuit could not even resolve the issue en banc. Indeed, this may be a situation where the Supreme Court has announced rules in different opinions that lead to different results. P. 20.

More hints that the Supreme Court is the root of the problem


The Federal Circuit is a response to a failure in judicial administration that produced a fractured, unworkable patent law. P. 33

Thanks to the Supreme Court it did not work.


Rantanen, Jason and Petherbridge, Lee, Disuniformity (November 10, 2013). U Iowa Legal Studies Research Paper No. 13-42. Available at SSRN:

[1] Rantanen, Jason and Petherbridge, Lee, Disuniformity (November 10, 2013). U Iowa Legal Studies Research Paper No. 13-42. Available at SSRN:


November 14, 2013 - Posted by | -Law, Patents | , , ,

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