The argument in favor of a specialized court for patent appeals is that this is an area where an expert court is particularly beneficial. But that proposition is contestable from several standpoints. First, the lines between the law governing patents and the law governing other forms of intellectual property law (copyright, trademark law, trade secret law, and so on) are blurring. For example, software is commonly protected under copyright, but some software might be patented. For many years, business methods were trade secrets, but now they are patentable. At the most general level, the same basic policies animate all aspects of our intellectual property regime: the idea that notional boundary lines need to be drawn around valuable property that individuals create, and the belief that the definition of such property rights “promotes longterm cultural and technological progress better than a regime of unbridled competition.” Judges on the regional courts of appeals are accustomed to working with these principles when they arise in copyright or trade secret cases, matters in which a patent is involved only as an asset under a license, and cases in which the patent issue arises only as a defense to the plaintiff’s claim, just to name a few. In short, there are many ways in which the different forms of IP are all part of one real-world transaction. So why we should treat patent law differently is a puzzle.
Chicago-Kent Journal of Intellectual Property