The Dixie Chicks and Robin Thicke explain how to fix the patent system

October 7, 2013

The Dixie Chicks expound on patent reform. (Jim Williams)

In 1982, Congress created a new court called the Federal Circuit Appeals Court and gave it exclusive jurisdiction over patent cases. Since then, patent law has become increasingly dysfunctional, with declining patent quality and rising litigation. Critics say that's not a coincidence: The Federal Circuit's rulings bear much of the blame for the system's problems.

That perspective has gained a powerful advocate: Diane P. Wood, chief judge of the 7th Circuit Appeals Court in Chicago. Her court was one of the 12 regional appeals courts that was stripped of jurisdiction over patent cases three decades ago. In an address last month but just published by the Chicago-Kent Journal of Intellectual Property, she argues that it's time to end Congress's experiment with giving one court a monopoly over all patent appeals.

The prominent jurist makes her case in an unconventional way: "My critique relies in large part on three of the leading legal thinkers of our times: the Dixie Chicks, Robin Thicke and Burt Bacharach."

"Wide Open Spaces," a song by the Dixie Chicks, is about a protagonist who "needs wide open spaces, room to make her big mistakes." Wood argues that the courts need the same opportunity to make "big mistakes" and then learn from them.

In most other areas of the law, the 12 regional appeals courts hear cases in parallel. Sometimes, they develop divergent legal principles, a situation known as a "circuit split." When that happens, the Supreme Court generally steps in to resolve the disagreement.

"Several circuits' elaboration of competing viewpoints might prove useful," she argues. "Speaking from my own experience, I can assure you that circuit splits and disagreements with colleagues force judges to sharpen their writing, push them to defend their positions and from time to time persuade them that someone else's perspective is preferable. This process of testing and experimentation is lost when uniformity is privileged above all other values."

In Wood's view, the Federal Circuit's monopoly over patent appeals has short-circuited the normal trial-and-error process by which law evolves. The Federal circuit still makes mistakes, but the lack of competition among appeals courts makes it hard to correct them. As a result, the legal principles that govern patent law have become excessively esoteric and insulated from criticism.

"Before you faint," Wood writes of the Robin Thicke song "Blurred Lines," "let me assure you that I am well aware of the nature of this 'song.' And I have no use for the misogynism of the lyrics and, in particular, the ugly and insensitive allusions to rape."

However, she argued, the concept of "blurred lines" applies as much to modern technology law as it does to Thicke's dubious view of sexual consent. "The lines between the law governing patents and the law governing other forms of intellectual property law (copyright, trademark law, trade secret law and so on) are blurring," she argues.

Many lawsuits involve combinations of patent law and other legal issues that are just as complicated. Wood says that undercuts the argument that patent law is too complex for courts like hers to handle. The 7th Circuit already handles a wide variety of complex legal issues, including copyright law, antitrust law, environmental law, and much more. While patent law is complicated, there's no reason to think a court that has mastered so many other arcane areas of the law couldn't handle patent law effectively.

"Law, in the final analysis, governs society," she writes. "It should not be an arcane preserve for specialists, who never emerge to explain, even to their clients, what the rules are or why one side or the other prevailed." Having generalist judges shape patent law helps ensure that the results are accessible to the general public.

The Burt Bacharach song "Always Something There to Remind Me" was made famous by Naked Eyes in 1983, but Wood notes that it was first recorded by Dionne Warwick two decades earlier. Wood argues that while the Federal Circuit officially has jurisdiction over all patent cases, there's "always something there to remind" the generalist appeals courts of patent law. "The regional courts are still called upon to resolve patent questions quite frequently in cases that do not 'arise under' the patent laws."

For example, she notes, courts are sometimes required to address patent law issues to resolve state-law malpractice lawsuits. The experience, she notes, "has not brought our patent regime to its knees."

So Wood advocates more of the same. She would let litigants choose whether to appeal patent law decisions to the Federal Circuit or regional courts like the 7th  Circuit. She argues that allowing multiple appeals courts to weigh in on patent cases would provide more space for "new ideas to percolate and grow" within the judiciary. It would also help the Supreme Court identify which patent law issues most required its attention.

Wood's use of song lyrics may have been fanciful, but her advocacy for curbing the Federal Circuit's power over patent law is deadly serious. Academics have long advocated reining in the Federal Circuit. But having a jurist of Wood's stature back the idea will give it greater credibility.

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Andrea Peterson | October 7, 2013