Noah Feldman, Columnist

Ready for a Patented Supreme Court Smackdown?

The federal circuit court of appeals thinks it's the Lord of Patents. The Supreme Court is pretty sure it's Lord of Everything.

October 15, 2014 at 9:01 AM UTC

By Noah Feldman

Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “To Be a Jew Today: A New Guide to God, Israel, and the Jewish People."

Is Clarence Thomas ready to join Team Copaxone?
Photographer: Chris Trotman/Getty Images for NASCAR

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When is a court not like court? The answer to this riddle is: When it’s the U.S. Court of Appeals for the Federal Circuit. This special court was imbued with special powers when it was created by Congress in 1982, including the authority to hear appeals from the federal district courts in essentially all patent cases.

Such is the uniqueness of the Federal Circuit that, even though appeals courts are supposed to defer to lower courts’ factual findings, the court reviews the interpretation of patents from scratch, granting no deference. The Supreme Court -- which drubbed the federal circuit last term -- is now poised to decide whether the appeals court has exceeded its authority by adopting this unique practice.