'Arising Under' Jurisdiction and Uniformity in Patent Law

Abstract

Congress created the United States Court of Appeals for the Federal Circuit in 1982, in part, to establish nationwide uniformity in patent law. The law governing the Federal Circuit's appellate jurisdiction was recently addressed by the Supreme Court's decision in Holmes Group, Inc. v. Vornado Circulation Systems, Inc. The Court held in Holmes that the Federal Circuit's appellate jurisdiction is governed by the well pleaded complaint rule and specifically rejected counterclaims as a vehicle to vesting appellate jurisdiction with the Federal Circuit. The Supreme Court's decision opens the door for claims of patent infringement under 35 U.S.C. Section 271, and other patent claims, to be reviewed by regional circuits, instead of the Federal Circuit. The impact of Holmes will also be felt with respect to a federal district court's removal jurisdiction and exclusive jurisdiction over patent counterclaims. The door is clearly open for the development of substantive patent law outside of the hands of the Federal Circuit and, perhaps even more importantly, outside of the federal courts. The very uniformity Congress attempted to introduce through its creation of the Federal Circuit and a federal patent law system may become undone by the Supreme Court's decision in Holmes. This Article addresses the potential non-uniformity in patent law Holmes may create and concludes that the potential for such a development is real. To prevent these situations from occurring, the effect of Holmes on the Federal Circuit's appellate jurisdiction and federal courts' jurisdiction must be limited and regional circuits and state courts must look to the Federal Circuit for guidance on patent law issues. This Article concludes that the only real solution is a legislative response, with Congress amending Section 1338 in such a way to return the Federal Circuit's appellate jurisdiction, and federal district court's original and exclusive jurisdiction, to their pre-Holmes form.