Document Type
Article
Publication Date
Spring 2024
Abstract
The United States Court of Appeals for the Federal Circuit ("Federal Circuit") holds exclusive jurisdiction over patent appeals and plays a vital role in shaping patent law and policy in the United States. Since its inception in 1982, the Federal Circuit has used en bane review as a crucial method to develop patent law and policy. Until recently, the court had been a model for en bane review by frequently hearing patent cases en bane, addressing important questions for a wide range of stakeholders in the patent system, and freely inviting amici to participate in the en bane process. Through this approach, the Federal Circuit positioned itself as an effective steward of patent law.
However, in 2018, the Federal Circuit suddenly, and without explanation, abandoned en bane review in patent cases. This abrupt departure from the court's prior practices raises important questions about the cause of this en bane retrenchment and demands a critical evaluation of its implications on the evolution of patent law, the Federal Circuit's role as a steward of patent law, and the impact on patent system stakeholders.
This Article documents the court's historical and current en bane practices and examines the potential causes behind the Federal Circuit's retreat from en bane review in patent cases. Notable developments in the law and institutions governing patent law and policy, such as the passage of the America Invents Act and its creation of the Patent Trial and Appeal Board, increased interest in patent law by Congress and the U.S. Supreme Court, and the unprecedented turnover of Federal Circuit judges may have contributed to this significant shift in en bane review. Moreover, this Article evaluates the need for the court to revive its previous en bane practices to ensure an effective and consistent patent law landscape and to effectively guide patent stakeholders.
Recommended Citation
Ryan Vacca,
Revisiting the Federal Circuit En Banc, 37 Harvard Journal of Law & Technology 501
(2024).
Available at: https://scholarship.law.missouri.edu/facpubs/1298