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Volume 62, Issue 4


AFTERWORD: Addressing the Elephant: The Potential Effects of the Patent Cases Pilot Program and Leahy-Smith America Invents Act

By The Honorable Randall R. Rader | 62 Am. U. L. Rev. 1105 (2013)

Recently, I have seen several big-budget television commercials invoke patents while marketing their goods. The general public’s recognition of the importance of patents to innovation and our economy is perhaps at an all-time high. Many factors probably drive this increased awareness, including our daily dependence on modern technology and media coverage of high-profile litigations and patent acquisitions. This increased attention has implications as well in the legal world. For those of us embedded within the patent system, we are experiencing a very important shift in the perception and operation of our discipline. For instance, many of the more prominent jurisdictions for patent trials are implementing local rules allowing uniform, fast, and cost-effective discovery and case development. The Patent Cases Pilot Program is similarly starting to influence the processes and efficiency of patent litigation with a heightened expertise in our already-marvelously-competent trial judges. Of
course, the elephant in the room regarding changes to patent law and litigation is the enactment of the Leahy-Smith America Invents Act (AIA).

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Fresh Eyes on Persistent Issues: Veterans Law at the Federal Circuit in 2012

By James D. Ridgway | 62 Am. U. L. Rev. 1037 (2013)

New beginnings can be as much about the past as they are about the future. Last year’s article on veterans law in the Federal Circuit
noted the extraordinary amount of change occurring in the composition of the court. Instead of speculating about the future, it focused on analyzing the past. A year later, it appears that the future does indeed begin with the past. With a substantially different lineup of judges, practitioners have entered the latest era of the Federal Circuit by revisiting the fundamental role of the courts in veterans law. In 2012, the Federal Circuit addressed numerous cases involving the limits on its authority and that of the Court of Appeals for Veterans Claims (CAVC). Veterans’ representatives have encouraged the Federal Circuit to take a more active role in reviewing individual decisions of the CAVC. They have also argued that the Federal Circuit should prod the CAVC toward reversing the Board of Veterans’ Appeals (BVA) more frequently. In 2012, there was a broad effort by veterans’ representatives to revisit the limits of judicial review. This Article will preface its review of the Federal Circuit’s decisions by considering how efforts to limit attorney representation in the Veterans Judicial Review Act (VJRA) have resulted in the current procedure-heavy focus of judicial review. It will also discuss how these limits might be adjusted to address the system’s current problems of complexity and delay.

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2012 International Trade Law Decisions of the Federal Circuit

By John R. Magnus & Sheridan S. McKinney| 62 Am. U. L. Rev. 963 (2013)

When the U.S. Court of Appeals for the Federal Circuit was established by the Federal Courts Improvement Act of 1982 it was vested with the former jurisdiction of its predecessor courts, the U.S. Court of Customs and Patent Appeals and the appellate function of the U.S. Court of Claims, as well as exclusive jurisdiction to hear appeals from the U.S. Court of International Trade (CIT) and the U.S. International Trade Commission (ITC or Commission). The Federal Circuit’s jurisdiction differs significantly from its twelve sister circuit courts in that it derives exclusively from statutory subject matter jurisdiction. Because the court’s exclusive subject matter jurisdiction eliminates the possibility of a circuit split, international trade holdings of the Federal Circuit are infrequently reviewed by the Supreme Court, rendering the Federal Circuit the court of final appeal for most trade cases.

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2012 Trademark Law Decisions of the Federal Circuit

By Molly R. Silfen, Jason W. Melvin, & Andrew E. Renison | 62 Am. U. L. Rev. 991 (2013)

Among the many cases decided every year by the U.S. Court of Appeals for the Federal Circuit, relatively few relate to trademark law. Unlike patent law and other substantive areas over which the Federal Circuit has exclusive jurisdiction, the court’s jurisdiction over trademark law arises only in appeals from the U.S. Patent and Trademark Office (PTO) and in appeals that otherwise fall within the Federal Circuit’s exclusive jurisdiction—such as appeals involving both patent and trademark issues. In 2012, of the over 700 opinions issued by the court, only thirteen—eleven precedential and two nonprecedential—related to trademark law. Thus, under two percent of the court’s opinions related to trademark law last year. But what the Federal Circuit lacks in quantity it makes up for in the importance of the issues, since the court addresses specialized trademark registration issues that are rarely addressed by other appellate courts. Of the thirteen trademark opinions, twelve began as proceedings before the PTO’s Trademark Trial and Appeal Board (TTAB), and one began in district court, in a case that also involved patent law issues. 

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2012 Government Contract Law Decisions of the Federal Circuit

By Matthew H. Solomson, L. Misha Prehein, Ellen M. Lynch, Laura J. Mitchell Baker, Christine Daya, Matthew Gravens, & Emily Patterson | 62 Am. U. L. Rev. 907 (2013)

The Supreme Court of the United States has observed that “[i]n constitutional adjudication, as in the common law, rules of law often develop incrementally as earlier decisions are applied to new factual situations.” The same comment accurately describes the Federal Circuit’s government contracts decisions from this past year; with (arguably) limited exception, the decisions discussed below reflect incremental development of the law, rather than any sea changes. Two exceptions to that generalization—Minesen Co. v. McHugh and Scott Timber Co. v. United States—both engendered significant dissenting opinions, suggesting that the issues addressed therein may well be the subject of a future en banc case. In yet a third case, VanDesande v. United States, the court specifically noted that it was addressing a matter of first impression. 

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