Coming of Age for the Federal Circuit

Coming of Age for the Federal CircuitRobin Feldman 1 (forthcoming The Green Bag 2014) This has been a watershed year for the Federal Circuit.The Chief Judge, who had gained a reputation for commenting publicly about pending legislation and cases, resigned after a scandal involving the appearance of favoritism towards a lawyer who appears before the court.The Circuit fared no better in the more traditional measure of approval from the court above.The Supreme Court granted certiorari in six patent cases arising out of the Federal Circuit this term-the largest number the Justices have accepted since the Circuit's creation in 1982.Moreover, in case after case this year, the Justices soundly and unanimously rejected the Federal Circuit's logic.To what should one attribute this cascade of unwanted attention from above?Some attribute the tension between the Federal Circuit and the Supreme Court to a clash between rules and standards.According to this view, the Federal Circuit craves structured rules that can be followed by all players, while the Supreme Court demands more subtle and flexible standards.Characterizing these struggles as a debate about rules and standards misses the heart of the conversation that is occurring.Rather, a strong message echoes through the six Supreme Court decisions.It is a message about restraint, about