AS THE Supreme Court grown tired of a single intermediate patent appeals court? Since the Court of Appeals for the Federal Circuit was established in 1982, the Supreme Court has reversed or vacated the Federal Circuit in substantive patent decisions 70 percent of the time, including four out of the last five decisions since 1996.[1]� In its most recent decision, Holmes Group Inc. v. Vornado Air Circulation Systems, Inc., the Supreme Court vacated the Federal Circuit’s ruling that Federal Circuit jurisdiction can be based on a patent law counterclaim, stating that “[n]ot all cases involving a patent-law claim fall within the Federal Circuit’s jurisdiction.” In concurrence, Justice John Paul Stevens opined that patent decisions by regional circuit courts of appeals may be “useful,” providing an “antidote” to the possible “institutional bias” of the Federal Circuit.[2]�
Adding further insult to injury, the Supreme Court also barely mentioned the 12-year-old en banc opinion of the Federal Circuit, authored by Chief Judge Howard T. Markey, where the Federal Circuit reasoned at length why, contrary to Vornado, it should have jurisdiction over patent law counterclaims.
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