An 1899 Proposal for a Proto-Federal Circuit

Although we tend to think of the idea of a modern appeals court focused on intellectual property issues as a recent phenomenon, in fact there had been attempts as early as 1878 create a specialized patent court.1  The issue of the complexity of intellectual property matters, especially patent law, was already apparent, and this was exacerbated by the creation of the Circuit Courts of Appeal in 1891, and the immediate circuit splits that ensued on patent law and other issues.

In 1898 Sen. Henry C. Hansbrough of North Dakota proposed the creation of a “High Court of Patents, Copyrights, and Trademarks.”2  In the new Congress the following year he reintroduced his bill, this time numbered 56th Cong., S. 1883.  The bill would have created a Court coordinate to the Supreme Court with jurisdiction over intellectual property issues, with seven Justices.  The bill would have also worked a repeal of the 1891 Act creating the Circuit Courts of Appeal and reset the federal Courts to their pre-1891 state, where both the District and Circuit Courts were trial courts with differing jurisdiction.3

Despite some support in industry publications like The American Machinist, this bill never went anywhere, but it was hardly the end of the issue, and bills to create specialized trial or appellate courts for intellectual property would continue for years to come.  The failure of the US Commerce Court in 1913 put a bit of a dent in the push for specialized Article 3 Courts generally, including the push for a specialized court in intellectual property.  The addition of patent jurisdiction to the Article 1 US Court of Customs in 1929 created an appellate patent court, but only for appeals from the Patent Office, not from the District Courts.  It would not be until 1982 that the Federal Circuit Court of Appeals was created to solve the problem of uniformity and expertise that had motivated Hansbrough’s proposal over 80 years earlier.

  1.  Felix Frankfurter, The Business of the Supreme Court of the United States – A Study in the Federal Judicial System, 39 Harv. L. Rev. 587, 615 (1926).  Part 5 of the Frankfurter piece gives the history of these attempts from 1878 through 1920.
  2. 55th Cong., S. 4256
  3. The 1891 Act did not abolish the trial-level Circuit Courts, which continued to exist until the Judicial Code of 1911 became effective

Author: Zvi S. Rosen

Lawyer and sometimes academic. I've written a fair deal about the evolution of intellectual property law into its present form, this blog is a way to share things that don't fit into a full-length article.

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