Patent Appeals & Labor Law

In my last post, I noted that it has become quite easy to get design patents. But it wasn't always that way. So what changed? One possible explanation is that the PTO simply abandoned its examining duties. But I think the blame—or credit, depending on your point of view—belongs with the U.S. Court of Appeals for the Federal Circuit.

Since 1982, the Federal Circuit has had exclusive appellate jurisdiction over patent cases. The court’s influence on utility patent law has been widely noted (and criticized). But the court has also worked rather dramatic—and equally problematic—changes to design patent law.

So I was intrigued when I heard that, in a recent speech, the Hon. Diane Wood suggested rolling back the Federal Circuit’s exclusive jurisdiction over patent appeals. To be clear, she isn’t proposing that the Federal Circuit be abolished; rather, she envisions giving parties “a choice: they could take their appeals to the Federal Circuit, thereby benefiting from that court’s long experience in the field, or they could file in the regional circuit in which their claim was first filed.”

According to Chief Judge Wood, this proposal is similar to the system we have for the review of National Labor Relations Board decisions. So I’m curious what labor law people think—does this dual-path appeal system work well in the NLRB context? Do most parties pick their local circuit or the D.C. Circuit? How often is Judicial Panel on Multidistrict Litigation intervention required?