Short-Circuiting Contract Law: The Federal Circuit's Contract Jurisprudence and Intellectual Property Federalism

Abstract

The Federal Circuit was established in 1982 as an appellate court with limited jurisdiction over patent claims. However, the Federal Circuit has used this limited jurisdiction to expand its reach into contract law, developing a federal common law of contract in cases involving patents. Given the growing importance of patent litigation in the past three decades, this creation of an independent body of contract law creates uncertainty in transactions involving patents. This troublesome development received attention in Stanford v Roche, a 2011 Supreme Court decision uphold the Federal Circuit's invalidation of a patent assignment to Stanford University. This Article documents the development of the Federal Circuit's contract jurisprudence and develops a theoretical framework for assessing this development based on scholarship on contractual innovation by Gilson, Sabel, & Scott (2013). The Article concludes with a recommendation that the Federal Circuit defer to the contractual orderings of the parties in a manner consistent with intellectual property federalism.