Favorite Wisconsin/Seventh Circuit Cases: A “Non-Patent, Patent” Case

This is an unusual blog post for me in that for once I am playing it straight with Michael’s request of the month. Just one case will be discussed! This, however, is not through any intentional strategy on my part. To use a colloquial phrase “the pickings were slim” since the Court of Appeals for the Federal Circuit hears most patent-related matters. To say the choice was “slim,” however, does not mean there was no fertile ground, and so I am selecting County Materials Corp. v. Allan Block Corp., 502 F.3d 730 (7th Cir. 2007), as my “favorite case.”

In County Materials, the Seventh Circuit, among other items, analyzed whether County Materials (a Wisconsin corporation) could sustain a claim of “patent misuse” against Allan Block (a Minnesota corporation). The case is an interesting one because County Materials is a great example of what, in her opinion, Judge Diane Woods (awesomely) refers to as a “non-patent, patent case” that falls within the jurisdiction of the regional courts of appeals, rather than the Federal Circuit, because the dispute before the court was not one where federal patent law creates the cause of action or is necessary to resolve the circumstances of the case. 

The jurisdictional a rule was created by the Supreme Court in Holmes Group, Inc., v. Vornando Air Cir. Sys., 535 U.S. 826 (2002). Holmes has allowed the useful development of more diversity in the jurisprudence over a number of ancillary doctrines in patent law, such as patent misuse and food and drug law. While I remain firmly agnostic over the outcome here — not the least because County Materials was ably represented by Milwaukee’s very own Michael Best & Friedrich LLP — I do think that the Holmes rule has served one key purpose in the patent regime. The Holmes rule, while not undermining the important centralizing role of the Federal Circuit, has created more diverse perspectives on key patent doctrines in light of the particular expertise of other circuits (here, the Seventh Circuit has typically played a key role in enunciating thoughtful antitrust principles). Such perspectives, I think, allow for a healthy and rich jurisprudential dialogue on patent law doctrines that has often been lacking, given the long shadow cast by the Federal Circuit in this area.

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