Adrift on a Sea of Uncertainty: Preserving Uniformity in Patent Law Post-Vornado Through Deference to the Federal Circuit

Larry D. Thompson, University of Georgia School of Law


To be sure, this Article does not conclusively resolve all issues surrounding deference to the Federal Circuit; given the complexity of this topic, several issues discussed herein could benefit from further inquiry. As mentioned, for example, at the conclusion of Part IV, it could be particularly useful to explore a more differentiated approach, perhaps based on the type of issue presented, to the question of the level of deference-if any- RCCOAs should accord the Federal Circuit's patent precedents. Even so, this paper's discussion of the feasibility and merits of deference should amply support judicial implementation of deference in appropriate cases and serve as a sound platform for legislative action and further scholarly investigation.

And however implemented, deference to the Federal Circuit on patent issues raised by patent counterclaims would effectuate Congress's intent in creating the Federal Circuit to produce a uniform patent jurisprudence. Conditional deference by RCCOAs (and unconditional deference by federal district courts) to the Federal Circuit's precedents would have significant advantages as a short-term resolution of the problems Vornado creates. In the long-term, such deference would prevent almost all of the damage to uniformity in patent law potentially caused by Vornado, while preserving the interests behind the well- pleaded complaint rule-and in particular plaintiffs' ability to control where, and under what law, their nonpatent claims will be heard.