SJ Quinney College of Law, University of Utah


The Federal Circuit’s jurisdiction is unique. Unlike the jurisdiction of all other U.S. courts of appeals, the Federal Circuit’s jurisdiction is defined not by its geographical boundaries, but rather by the subject matter of the original claims and compulsory counterclaims. The court has appellate jurisdiction over final decisions from all U.S. district courts if a plaintiff’s claim or a party’s counterclaim arises under the patent laws. From this unusual jurisdictional grant, the Federal Circuit has concluded that, as a policy matter, it should apply and develop its own law only if the legal issue pertains to patent law. For all other legal issues, the Federal Circuit defers to the law of the court of appeals in which the case originated—i.e., it applies the procedural law and the non-patent substantive law of the regional circuits.

This Article undertakes a thorough evaluation of the Federal Circuit’s choice-of-law rule. It examines how the rule compares against the congressional objectives reflected in the court’s enabling statute as well as against possible alternative rules. In addition, it considers how the court’s rule causes the court to depart from the trans-substantivity principle of procedural law and a related principle of equity in a nontransparent manner, and, in doing so, engage in substantive lawmaking that may be beyond the court’s authority. Finally, this Article contemplates solutions beyond a mere change in the court’s choice-of-law rule.