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Volume 61, Issue 4
FOREWORD: The Federal Circuit at Thirty

By the Honorable Pauline Newman | 61 Am. U. L. Rev. 729 (2012)

Circuit Judge, U.S. Court of Appeals for the Federal Circuit

Thirty years marks another milestone in the life of the Federal Circuit, another marker in this  experiment in providing economic incentive by eliminating regional differences in judicial rulings.  The Federal Circuit was formed to bring this attribute to the patent law, for the differences among the regional circuits had become so extreme as to affect the economics of industrial innovation.  The disparity of judicial decisions among the regional circuits was believed to have destabilized the commercial law by producing forum differences so extreme as to affect research and development of new technologies.  Concern for the adverse impact on innovative industry was fueled by the economic recession of the 1970s, and led to a restructure of the federal appellate system whereby patent appeals from the district courts were removed from the regional circuits and placed in a single national court, along with patent appeals from administrative agencies, accompanied by several unrelated areas of national jurisdiction.

Tailoring Remedies to Spur Innovation

By Sarah R. Wasserman Rajec | 61 Am. U. L. Rev. 733 (2012)

The George Washington University Law School

An emerging rule in the district courts—thus far endorsed by the United States Court of Appeals for the Federal Circuit—allows a victorious patent holder to receive a permanent injunction against an infringer if she is able to show that she has suffered a loss of market share due to the infringement. The larger the loss of market share the patent holder can prove, the more likely the court will issue an injunction. This “market share rule” is a response to the Supreme Court’s ruling in eBay Inc. v. MercExchange, L.L.C., exhorting lower courts to engage in equitable balancing before awarding permanent injunctions. The case followed a flare-up of concern over entities—sometimes termed “patent trolls”—that do not practice their patents but demand what some consider exorbitant licensing fees from those who would. These entities arguably introduce inefficiencies into the patent system that impede innovation, thereby affecting access.

2011 Patent Law Decisions of the Federal Circuit

By Robert A. Pollock, Linda A. Wadler, Robert D. Litowitz, Joyce Craig, Bart A. Gerstenblith, Christina Szakaly, Zhenyu Yang, and Mindy L. Ehrenfried | 61 Am. U. L. Rev. 785 (2012)

Finnegan, Henderson, Farabow, Garrett & Dunner LLP

Landmark.  Watershed.  Seminal.  These adjectives routinely populate legal writing—especially “year in review” compendiums such as this one.  Most readers gloss over them as mere hyperbole.  In 2011, however, “landmark,” “watershed,” and “seminal” only begin to describe the year’s legislative and judicial developments, which will transform and shape patent law for decades.

2011 Government Contract Law Decisions of the Federal Circuit

By Joel Singer, Kyle Fiet, Matthew Solomson & Benjamin Glerum | 61 Am. U. L. Rev. 1013 (2012)

Sidley Austin LLP

Over the past year, the United States Court of Appeals for the Federal Circuit issued a relatively small body of new precedential opinions in the field of government contracts.  Indeed, during 2011, the court issued only twenty-two precedential opinions in this area, seven of which were in the “non-mainstream” context of Winstar and spent nuclear fuel (SNF) litigation.  While it is not possible to draw many broad conclusions from the relatively small number of remaining decisions, there were four main developments that likely will be of interest to practitioners in the field.

2011 International Trade Law Decisions of the Federal Circuit

By Gregory J. Spak, Forrest R. Hansen & Daniel J. Hickman | 61 Am. U. L. Rev. 1105 (2012)

White & Case LLP

The United States Court of Appeals for the Federal Circuit occupies a unique position among the thirteen federal courts of appeals.  Hearing cases nationwide, the Federal Circuit exercises jurisdiction over specific subject matters, including international trade, government contracts, patents, trademarks, certain money claims against the United States government, federal personnel, veterans benefits, and public safety officers’ benefits claims.  The Federal Circuit is frequently called upon to review decisions from the United States Court of International Trade, the United States Court of Federal Claims, the United States Court of Appeals for Veterans Claims, and federal district courts.

2011 Trademark Law Decisions of the Federal Circuit

By Marynelle Wilson & Antigone Peyton | 61 Am. U. L. Rev. 1151 (2012)

Cloudigy Law PLLC

The United States Court of Appeals for the Federal Circuit’s trademark docket was quiet in 2011.  The Federal Circuit issued only six trademark decisions, designating two of them as precedential.  The court issued a considerably higher number of trademark opinions in prior years.

Changing Voices in a Familiar Conversation About Rules vs. Standards: Veterans Law at the Federal Circuit in 2011

By James D. Ridgway | 61 Am. U. L. Rev. 1175 (2012)

The George Washington University Law School

When an institution is in flux, there are two obvious ways to examine it.  One can attempt to make predictions about its future, or one can explore the current baseline to set up future analysis of the impact of change.  As discussed below, both the Federal Circuit and the dynamic that has shaped veterans law in recent decades are in flux.  This Article, while continuing the recent trend of reviewing the developments in veterans law at the Federal Circuit over the preceding calendar year, takes the latter approach to the bigger picture.  An annual review article is better suited to the second pursuit and there is little solid information that could be used to predict where the events of 2011 will take veterans law.  Accordingly, a deeper reflection on the status quo helps set the stage for digesting the coming changes.

NOTE: Tianrui Group Co. v. International Trade Commission: The Dubious Status of Extraterritoriality and the Domestic Industry Requirement of Section 337

By Viki Economides | 61 Am. U. L. Rev. 1235 (2012)

In 2007, one journalist, Dirk Lammers, undertook a seemingly innocuous task:  to avoid anything “Made in China” for just one week.  He was not the first to undertake such a challenge in consumerism.  Others before him declared a boycott on Chinese products for an entire year, acting either out of concern for safety regarding allegations of Chinese food contamination and faulty assembly-line production of tires and toys, or simply reacting to the realization that everything they owned—or close to it—was Chinese.