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Abstract

The Federal Circuit's legal decisions are perceived to have a significant impact on patent policy because of its close relationship with the patent bar and the United States Patent and Trademark Office (USPTO). Accordingly, litigants before the Federal Circuit may have the unique opportunity to directly influence patent policy. In a 2003 article, Professor Arti Rai suggested that if factual determinations concerning litigation were the responsibility of the USPTO and U.S. District Courts, then the Federal Circuit would be the ideal entity to make patent policy. Interestingly, during a recent panel at the 2013 Intellectual Property Symposium at the Southern Methodist University Dedman School of Law, judges from the Federal Circuit suggested that they would like to see more policy arguments made in appellate briefs. Policy arguments are generally not emphasized in Federal Circuit briefs, but if a litigant does advance policy arguments before the Federal Circuit, it is instructive to observe (1) how the policy arguments are constructed, and (2) whether the Federal Circuit expresses a policy preference in its opinion. As an example, one need look no further than the Federal Circuit's recent en banc decision in Akamai Techs., Inc. v. Limelight Networks, Inc. (Akamai II) where a dissenting judge accused the majority of playing policy maker. This Article analyzes the Federal Circuit's recent en banc decision in Akamai II from a policy perspective. This Article observes that the Federal Circuit's fractured decision was, at least in part, due to unhelpful statutory language and tension between formalism and policy concerns. Further, this Article argues all three opinions issued in Akamai are in some way consistent with policy concerns raised by the plaintiffs and their amici. Finally, this Article raises several questions, including: When are policy arguments most effective? What are the current limits of the Federal Circuit's policy making? And what is the impact on patent stakeholders when policy arguments are raised more frequently before the Federal Circuit.

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