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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