Writing for Ars Technica in an article titled “How a rogue appeals court wrecked the patent system,” associate writer Timothy Lee explores the history of the Federal Circuit Court of Appeals, noting that it was created in 1982 due to “concerns about the lack of uniformity in patent law [that] had become widespread.” With sole appellate jurisdiction over patent disputes, the court accomplished congressional goals by making patent law more uniform, but it had other side effects, according to Lee. From its earliest years, the court consistently sided with patent holders, and it was able to do so “in part because the [U.S] Supreme Court took a hands-off approach to the subject during the new court’s first two decades.”

Lee discusses U.S. Supreme Court rulings from 2006-2008 in which the Court “stepped up its oversight of the Federal Circuit’s work” under Chief Justice John Roberts and overruled patent-friendly decisions. And while the Federal Circuit “took some token steps to bring its decisions in line with Supreme Court precedents,” it has “continued to exhibit a strong pro-patent bias, which has forced the Supreme Court to continue overturning pro-patent rulings from the court.” Lee cites a recent patent ruling from Judge Richard Posner who opined that the “patent system had descended into ‘chaos,’” and contends that “breaking the Federal Circuit’s monopoly on patent appeals may be the single most important step we can take to fix the patent system.” He predicts that the “Federal Circuit looks likely to undermine other reforms undertaken by Congress, just as it has resisted the Supreme Court’s efforts to bring balance to patent law.”