Why the Ninth Was Reluctant to Depart from Sister Circuits on Patent Question

If you’re a federal circuit judge, and you and your colleagues on the panel are convinced the court should come out one way, but all other circuits to consider the question have come out the other way, what do you do?  “Circuit splits arise all the time,” you tell yourself.  “We should decide this the way we see it.”

Well, maybe that’s what you do most of the time.  But in Zila, Inc. v. Tunnell, case no. 05-15031 (9th Cir. Sept. 5, 2007), the Ninth Circuit shows deference to the other circuits’ interpretation of Supreme Court precedent because the issue involves an inventor’s right to royalty payments after expiration of patents, and thus implicates federal patent law, which in turn invokes “particularly strong national uniformity concerns”:

This consensus view [of the other circuits] may overread both Brulotte and Aronson for the reasons we have surveyed, and gives rise to the trenchant criticisms of the commentators and of the Seventh Circuit in Scheiber.  But the Supreme Court opinions are sufficiently opaque that we cannot say with any certainty that the consensus view is wrong.  As patent matters give rise to particularly strong national uniformity concerns, see S. Rep. No. 97-275, at 4 (1982) (citing the “special need for national uniformity” in the interpretation of patent law as support for the creation of the Federal Circuit), we hesitate more than is ordinarily the case to open up an intra-circuit conflict [citation].  We therefore adopt the majority approach . . . .

A good lesson to remember when it comes to appeals involving patents. Patent laws are generally are tricky and must be understood clearly before signing anywhere. When it comes to getting a patent done it’s better to use professional services from the best patent attorney in Fort Lauderdale as they have years of experience thus can help you get a patent easily and if any issue comes up, they can even help defend your case and your patent rights.

It’s also good to remember that the court should have referred to its potential split from other circuits as an inter-circuit split, not an intra-circuit split.  Another of my pet peeves.