BYU Law Review


Andrew Hoffman


The Federal Circuit is certainly unique among the circuit courts of appeals. Its exclusive jurisdiction over patents places it in a powerful position. But with that power comes a responsibility to oversee the development of the law. And in the last decade, the court has fallen short of fulfilling this obligation—particularly with regard to clarifying provisions of the America Invents Act. The court has repeatedly disregarded important questions of law by use of Rule 36 summary affirmance. Though other courts of appeals regularly use summary disposition as a means of dealing with burgeoning dockets, the Federal Circuit uses summary affirmance at a much higher rate and to dismiss unresolved legal questions. This Comment explores some of the possible reasons why the court uses summary affirmance so frequently. After discussing summary disposition more generally, it specifically presents the theory of certproofing—or avoiding Supreme Court review—as one possible explanation. It concludes by offering some solutions to curb the court’s summary affirmance habit.


© 2018 Brigham Young University Law Review

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