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Volume 63, Issue 4
FOREWORD: Interesting Times at the Federal Circuit

By The Honorable Kathleen M. O'Malley  | 63 Am. U. L. Rev. 949 (2014)

The decision to leave the U.S. District Court for the Northern District of Ohio and move to the U.S. Court of Appeals for the Federal Circuit was not an easy one. Yes, I had many powerful reasons to make the move: (1) I was honored to be nominated to a superior court after serving as a trial judge; (2) I had great respect for the judges on the Federal Circuit and recognized the increasing importance of the work they were doing in the intellectual property field; (3) I was aware that the other areas of law over which the Federal Circuit exercises appellate jurisdiction were interesting and challenging; (4) I, like others, believed it was time to add at least one district court judge to the ranks of the judges on the Federal Circuit; (5) after more than sixteen years on the district court bench, I was intrigued by the possibility of a new challenge; and (6) most importantly, I knew that moving to the Federal Circuit would allow me to live in the same city as my husband, who lived and worked in Washington, D.C. I also had some trepidation about the move—not about living with my husband George, of course—but about other things.

Congress as a Catalyst of Patent Reform at the Federal Circuit

By Jonas Anderson | 63 Am. U. L. Rev. 961 (2014)

The U.S. Court of Appeals for the Federal Circuit is the dominant institution in patent law. The court’s control over patent law and policy has led to a host of academic proposals to shift power away from the court and towards other institutions, including the U.S. Supreme Court, the U.S. Patent and Trademark Office, and federal district courts. Surprisingly, however, academics have largely dismissed Congress as a potential institutional check on the Federal Circuit. Congress, it is felt, is too slow, too divided, and too beholden to special interests to effectively monitor changes in innovation and respond with appropriate reforms.

Stabilizing Morality in Trademark Law

By Christine Haight Farley | 63 Am. U. L. Rev. 1019 (2014)

Almost all of the commentary concerning the statutory prohibition on registering offensive trademarks lambasts it as a misguided attempt to enforce civility through trademark law.  This Article carefully considers the challenges accompanying section 2(a) of the U.S. Trademark Act and defends it as good policy.  There are, however, a few instances in which the jurisprudence under section 2(a) has created more problems than it has solved.  To alleviate these problems, this Article proposes judging words per se and abandoning the traditional trademark notion of evaluating words in context.  Judging words per se is warranted given the very different objectives underlying section 2(a) as compared with the rest of the Trademark Act.

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2013 Patent Law Decisions of the Federal Circuit

By Robert A. Pollock, Mark J. Feldstein, Barbara R. Rudolph, Joyce Craig, Elizabeth D. Ferrill, Corinne Miller LaGosh, Michelle Pacholec, Kara Specht, Michael A. Stramiello, & Jonathan R. K. Stroud | 63 Am. U. L. Rev. 1051 (2014)

The U.S. Court of Appeals for the Federal Circuit’s year of decisions in 2013 may be best remembered for the issues not finally decided, the intracourt disputes revealed, and the foundations laid for future changes in the law. In other words, notwithstanding over 100 precedential patent decisions, each with its own important implications to the law, 2013 looked more like a “work in progress” than a final chapter.

2013 Government Contract Law Decisions of the Federal Circuit

By Dennis J. Callahan, Jeffery M. Chiow, Lauren B. Kramer, & Oliya S. Zamaray | 63 Am. U. L. Rev. 1307 (2014)

In The Path of the Law, Oliver Wendell Holmes, Jr. described the legal profession as a study in prediction: people pay lawyers to argue and advise as to the circumstances under which courts will command the power of the state for or against the clients’ interests. For government contract lawyers, the U.S. Court of Appeals for the Federal Circuit has the final word (in cases prosecuted that far) in all but a vanishing number of the thousands of bid protests and claims presented each year to procuring agencies, the U.S. Government Accountability Office (GAO), the U.S. Court of Federal Claims, and other administrative and adjudicative bodies.

2013 International Trade Law Decisions of the Federal Circuit

By Kevin J. Fandl | 63 Am. U. L. Rev. 1375 (2014)

The 2013 term at the U.S. Court of Appeals for the Federal Circuit was replete with a variety of important international trade law decisions. As in past terms, the majority of cases addressed challenges to antidumping orders and administrative review processes. However, this term also included a significant case pertaining to alleged discrimination within the Harmonized Tariff Schedule. Another case involved a complaint by U.S. lumber firms challenging the authority of the U.S. Trade Representative (USTR). The court also addressed a unique First Amendment challenge to an antidumping order—arguing that a negative response to an administrative questionnaire should not be used against a party in a duty determination. Additionally, six classification cases provided valuable insight into the U.S. Customs and Border Protection’s (“Customs”) discretion in identifying a proper tariff heading.

2013 Trademark Law Decisions of the Federal Circuit

By Anita B. Polott & Dana N. Justus | 63 Am. U. L. Rev. 1419 (2014)

The U.S. Court of Appeals for the Federal Circuit had a very quiet year in terms of trademark decisions, issuing only four decisions in 2013.   This number is a notable decline from the Federal Circuit’s output on trademark decisions  in past years, which included thirteen trademark decisions in 2012,  six in 2011,  and twenty-three in 2010.   This year’s decrease in trademark decisions cannot be attributed to a significant decrease in the court’s caseload, as its overall docket for Fiscal Year 2013  was down only slightly from previous years, with 1,259 appeals filed as compared to 1381 in Fiscal Year 2012 and 1349 in Fiscal Year 2011.  

Ending the Second "Splendid Isolation"?: Veterans Law at the Federal Circuit in 2013

By Victoria Hadfield Moshiashwili | 63 Am. U. L. Rev. 1437 (2014)

This Article continues the trend of reviewing the veterans benefits case law of the U.S. Court of Appeals for the Federal Circuit and related developments over the preceding calendar year.   Part I provides context for the issues raised by the cases before the Federal Circuit in 2013.  Part II of this Article reviews changes in the composition of the Federal Circuit that have been ongoing since 2011.  Part III contains a review of the veterans law cases decided by the Federal Circuit in 2013.  Part IV discusses some of the themes and possible future directions raised by the cases.   This Article concludes with an addendum that continues the statistical look at veterans law in the Federal Circuit.

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