The Federal Circuit, alone among the U.S. Courts of Appeals, has the power to hear cases before a five-judge panel (rather than a three-judge panel).  It also has the power to decide, by local rule, when it will hear a case with a five-judge panel.  Here’s the key language from 28 U.S.C. § 46(c):

Cases and controversies shall be heard and determined by a court or panel of not more than three judges (except that the United States Court of Appeals for the Federal Circuit may sit in panels of more than three judges if its rules so provide), unless a hearing or rehearing before the court in banc is ordered by a majority of the circuit judges of the circuit who are in regular active service.  (Emphasis added).

And the Court has certainly heard patent cases with five-judge panels.  See, e.g., Animal Legal Defense Fund v. Quigg, 932 F.2d 920 (Fed. Cir. 1991).

So … here’s my somewhat odd idea to help reduce interpanel unpredictability (if one thinks, as some do, that there’s too much such unpredictability): If, after oral argument in a case, a three-judge panel splits its vote (i.e., there’s a dissenter), the case is reassigned to a five-judge panel that includes two more judges (as well as the original three) for a new argument (and more briefing, if needed).  In practical terms, this gives the dissenter the chance to persuade two other colleagues and become a new, three-person majority.  Or not.  Either way, the resulting decision involves more focused consideration by a greater number of the court’s judges.

What do you think?