On October 20, Pauline Newman Professor of Law Rochelle C. Dreyfuss delivered the Fifth Annual Finnegan Distinguished Lecture on Intellectual Property at American University Washington College of Law. Dreyfuss presented an examination of the relationship between the United States Court of Appeals for the Federal Circuit and the Supreme Court titled “What the Federal Circuit Can Learn from the Supreme Court—and Vice Versa,” which will be published in the American Law Review. Attending the event was Judge Pauline Newman ’58 of the U.S. Court of Appeals for the Federal Circuit.

Dreyfuss presented a brief history of the Federal Circuit. In an attempt to stabilize patent law, the Federal Circuit was formed in 1982, a combination of the U.S. Court of Customs and Patent Appeals and the appellate division of the U.S. Court of Claims. Although the Supreme Court rarely reviewed Federal Circuit cases early on, Dreyfuss said that in recent years the Supreme Court has intervened more frequently.

The challenge in making the relationship run smoothly, Dreyfuss said, is integrating the Federal Circuit’s expert knowledge of specialized topics with the Supreme Court’s general knowledge. Dreyfuss suggests that the Supreme Court is better equipped for what she calls “micro and macro” policy changes. For example, in Bilski v. Kappos, a case with implications for the software, biotechnology, and financial services industries, the Supreme Court’s decision will determine when business methods qualify for patent protection. “The Supreme Court's position at the top of the judicial hierarchy puts it in the right place to see how patents fit into the overall economy,” Dreyfuss says. “Accordingly, questions about the types of economic activities that should be subject to patent law should be decided by the Supreme Court.” At the “micro” level, the Supreme Court helps align patent law with standards set in other fields.

Dreyfuss said that the Federal Circuit, conversely, is more practiced in “mid-range” policy issues—those which involve keeping patent law responsive to the changing needs of the patent industries and to users of patented technology. The Federal Circuit, which sees cases on patent laws frequently, can use its expertise to move these cases along much faster than Congress or the Supreme Court can. But, in the process, the Federal Circuit must take a lesson from the Supreme Court’s detailed and explicit opinion writing. “By teaching each other the lessons that come from their unique perspectives,” she said, “these two courts…can make a really significant contribution to judicial administration both here in the United States and abroad.”

The full video of Dreyfuss’s lecture is available on the Washington College of Law Web site.

Posted on October 23, 2009