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119 Penn St. L. Rev. 925 (2014-2015)
Federal Circuit Deference: Two Regimes in Conflict

handle is hein.journals/dlr119 and id is 959 raw text is: Federal Circuit Deference: Two Regimes in Conflict Amy R. Motomura* ABSTRACT This Article explores the role of the Federal Circuit in the federal intellectual property regime, as well as in the federal court system, by identifying and examining a fundamental conflict in the deference the court accords to two different institutions-the district courts and the International Trade Commission (ITC). This conflict is significant because patent litigation increasingly occurs in both forums, frequently in the same dispute. Traditionally, in district court appeals the Federal Circuit has taken a circumscribed view of its own role vis-d-vis the other appellate courts and has deferred on a number of issues outside its area of specialization. This is in stark contrast to the Federal Circuit's stance in reviewing agencies, where it has consistently demonstrated its unwillingness to defer to either the ITC or to the United States Patent & Trademark Office, sometimes in direct contravention of administrative law principles. The conflict between these two regimes is reflective of uncertainty about the Federal Circuit's scope of authority and role in the federal system. On the one hand, its deference in appeals from district courts seems to reflect doubts about the Federal Circuit's competency outside of patent law. But on the other, the court's assertion of power over similar issues in the ITC, even despite administrative law principles suggesting otherwise, suggests a much more broadly competent and powerful institution. This Article argues that the conflict between the two deference regimes has a destabilizing effect and that principles of administrative law and appellate review suggest it may be wise to consider harmonizing changes to both. * Associate, Morrison & Foerster LLP. Many thanks to Mark Lemley for helpful discussions and feedback on early drafts.

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