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Professor Shubha Ghosh Publishes on "Jurisdiction Stripping" & Commercial Law in Akron Law Review

Posted on Monday 5/13/2019
Shubha Ghosh
​Ghosh, Shubha. "Jurisdiction Stripping of the Federal Circuit?" Akron Law Review,  52:2 (2019).

"This article examines how the Federal Circuit addresses state commercial and contract law in its patent law jurisprudence," writes Crandall Melvin Professor of Law and Director of the Syracuse Intellectual Property Law Institute Shubha Ghosh in the abstract to "Jurisdiction Stripping of the Federal Circuit?" in Akron Law Review, 52:2.  

Instead of deferring to state law, Ghosh asserts, the federal circuit court creates its own "federal common law of contracts and assignments," creating parallels with the debates arising from the 1938 Erie Railroad Co. v. Tompkins decision ("Since federal common law is invalid, federal courts sitting in diversity jurisdiction should apply substantive state law and federal procedural law, unless there is a conflict between substantive state and federal law.")

This federal common law is inconsistent with the need for uniformity in the law governing patent transactions, says Ghosh, adding that, to resolve this issue, "Congress may consider stripping Federal Circuit jurisdiction over state contract law claims." Ghosh's article further examines the pros and cons of this proposal.