Document Type

Article

Publication Date

2002

Keywords

patents, specialized trial courts, scientific fact, expert witness, infringement, Federal Circuit, patent reform

Abstract

In the absence of a specialized patent trial court with expertise in fact-finding, the Court of Appeals for the Federal Circuit often reviews de novo the many factual questions that pervade patent law. De novo review of fact by an appellate court is problematic. In the area of patent law, as in other areas of law, there are sound institutional justifications for the conventional division of labor that gives trial courts primary responsibility for questions of law. This Article identifies the problems created by de novo appellate review of fact and argues for the creation of a specialized trial court to which the Federal Circuit would feel compelled to defer on questions of fact. It also discusses how such a court would be designed, focusing on the manner in which trial court judges could use the court-appointed advisors to evaluate competing factual claims.