The Essential Relationship Spectrum: A Framework for Addressing Choice of Procedural Law in the Federal Circuit

Abstract

Because of the Federal Circuit’s unique jurisdictional grant, the court faces a unique choice-of-law problem whenever a procedural issue is appealed in a patent suit. Unfortunately, rather than announcing and following a consistent doctrine for choice-of-law questions, the Federal Circuit has developed a menu of phraseology and policy concerns, selecting and then applying a unique combination of appetizer and entree each time it faces a choice-of-procedural-law question. What is missing is a consistent conceptual framework. This Comment proposes such a framework, in the form of a conceptual spectrum, along which each choice-of-procedural-law question should be placed. Procedural questions bearing no relation to substantive patent doctrines (by which I mean, primarily, procedural questions that bear no relation to patent validity or infringement doctrines) are at one end of the spectrum, and those bearing a close and “essential” relationship are at the opposite end. When considering questions in light of this framework, three principles should guide the Federal Circuit. First, each precedential point on the spectrum should be a bright and immovable point, so that each decision is construed to encompass all similar procedural questions. Second, each choice-of-procedurallaw decision should be interpreted not only for its holding on a particular type of procedural question, but also for its holding on the degree of relationship between the procedural question and substantive patent law; in other words, the relevant unit of measure on the spectrum is the closeness of the relationship between a procedural question and substantive patent law. Third, the “essential