This Article disputes three “myths” regarding certainty and uniformity in patent law. First, it rebuts the claim that the Federal Circuit has mostly eliminated nonuniformity in the application of patent law. Although the Federal Circuit has generally purged the longstanding doctrinal splits among the regional circuit courts, because most patent actions are not appealed, it is the district courts-which exhibit wide variance from one another-that are the effective courts of last resort. As such, nonuniformity-and attendant forum shopping-remain widespread. Second, this Article casts substantial doubt on the assertion that the Federal Circuit’s high claim construction reversal rates are merely the result of litigants selecting the most uncertain cases for appeal. Rather, in comparison to reversal rates for other patent law issues, as well as rates for other types of complex cases in the regional circuits, the best-supported inference is that claim construction at the Federal Circuit is in need ofjurisprudential repair. Third, collecting data from several sources, this Article contends that the Federal Circuit’s reversal rates on the whole are not particularly high, and roughly the same as reversal rates in other circuits, especially those for complex civil cases. Thus, claim construction notwithstanding, for most patent law issues, appeals at the Federal Circuit do not appear to be overly unpredictable or panel-dependent.
Ted Sichelman, Myths of (Un) Certainty at the Federal Circuit, 43 Loy. L.A. L. Rev. 1161, (2010)