Xuan-Thao Nguyen’s recent article, "In the Name of Patent Stewardship: The Federal Circuit’s Overreach into Commercial Law", is important for at least two potential reasons that Nguyen herself highlights. First, to the extent that the Federal Circuit’s decisions related to commercial law differ from state courts’ decisions related to commercial law, it might call into question the Federal Circuit’s competency with respect to commercial law. And, second, it certainly highlights something that practitioners might need to know to adapt their advice and strategies for reaching their clients’ desired ends. But Nguyen’s critique is important for a third reason. Assuming the Federal Circuit’s competency, her critique calls into question the Federal Circuit’s reasoning and motivation, not only for its repeated decisions to follow its own law rather than state commercial law, but also for its substantive conclusions. In this regard, however, it is important to note that two of the three decisions she highlights resolved jurisdictional challenges on grounds of lack of constitutional standing by plaintiffs. Thus, further analysis of two issues, at least with respect to two of the three cases she highlights, would be helpful: (1) choice of law given the doctrines of supremacy and uniformity; and (2) whether the policies underlying constitutional standing trump the policies underlying commercial law. With regard to these issues, neither the Federal Circuit nor Nguyen have made their case. An explicit analysis of these issues by Nguyen would no doubt redound to the great benefit of the Federal Circuit and its bar.
Florida Law Review Forum
David O. Taylor, Patent Stewardship, Choice of Law, and Weighing Competing Interests, 67 Fla L. Rev. F. 13 (2015)