The Federal Circuit and the D.C. Circuit: Comparative Trials of Two Semi-Specialized Courts

Abstract

A string of reversals by the Supreme Court of the United States has helped create an impression that the patent jurisprudence of the United States Court of Appeals for the Federal Circuit is under siege. But the experience of another semi-specialized court of appeals, the United States Court of Appeals for the D.C. Circuit, suggests that such Supreme Court intervention is likely to be less than cataclysmic. In the 1970s and 1980s, the Supreme Court reversed the D.C. Circuit in administrative law cases with a ferocity that makes the Court’s present-day interventions in patent law look timid. Despite the onslaught, however, much of the D.C. Circuit’s work survived. The D.C. Circuit’s experience thus suggests at least two lessons that might extend to the Federal Circuit today: first, Supreme Court intervention does not necessarily prevent a semi-specialized circuit from putting a strong stamp on an area of relative expertise; and second, even when Congress has created a semi-specialized circuit, spates of Supreme Court scrutiny and reversal might be essentially inevitable and possibly even desirable.