Two Unsettled Aspects of the Federal Circuit's Patent Jurisdiction

Abstract

The Federal Circuit's views on its appellate jurisdiction in patent cases have become questionable in two areas, which the article elucidates. One is in cases that involve only transient patent claims, i.e., claims that were at one time in the case but were dropped before judgment, leaving only nonpatent claims remaining. As seen in decisions following Zenith Electronic Corp. v. Exzec, Inc., 182 F.3d 1340 (Fed. Cir. 1999), the court apparently is of the view that it retains exclusive appellate jurisdiction in such situations. That view is logically flawed and does not comport with the purposes for which the Federal Circuit was created in 1982. The second problematic area is situations in which patent and nonpatent cases were consolidated in the district court for all purposes. The Federal Circuit views the effect of such consolidations as merging the component cases into one large one, with the exclusive route of appeal from any judgment therein being to the Federal Circuit. Supreme Court authority and the better reasoned approach indicate that consolidation does not affect jurisdiction; the cases retain their separate identities after consolidation and should follow the respective appeal routes they would have had absent the consolidation. Rulings in this area are apt to have a substantial impact in patent-antitrust litigation.

Keywords: Federal Circuit, patent, jurisdiction, patent claim, consolidation