A little more than eight years ago, as reported in the National Law Journal, “the nation’s dependence on technological innovation has pushed the once-obscure U.S. Court of Appeals for the Federal Circuit center stage.” Victoria Slind-Flor, “Federal Circuit Judged Flawed,” National Law Journal, Aug. 3, 1998, at A1. The article quoted several critics of the court and questioned whether the court serves the purposes for which it was designed in 1982.
Since then, critics have become only more vocal. Indeed, Adam B. Jaffe and Josh Lerner in “Innovation and its Discontents: How Our Broken Patent System is Endangering Innovation and Progress and What to Do About It” (2004), fault the Federal Circuit as a primary cause for the gloomy assessment reflected in their title. Although more nuanced, recent reports from the Federal Trade Commission (FTC) and a National Research Council board are also critical. That the FTC report was cited in eBay Inc. v. MercExchange LLC, 126 S. Ct. 1837 (2006) (Justice Anthony M. Kennedy concurring), shows that the U.S. Supreme Court has taken notice.
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