Appellate Litigation Update

The Supreme Court’s Patent Law Docket: The Supreme Court has granted review in three cases involving patent law this Term: Global-Tech Appliances, Inc. v. SEB S.A., Board of Trustees of the Leland Stanford Junior University v. Roche Molecular Systems, Inc., and Microsoft Corp. v. i4i Limited Partnership. This is consistent with the Court’s dramatic revival of interest in the patent field in recent Terms. After reviewing many famous patent cases in the nineteenth century, the Court ceded virtually all patent appeals to the circuit courts for most of the twentieth century and then to the Federal Circuit once that specialized court was formed in 1982. After reviewing only one patent case a year from 1950 through 1982, and a mere twelve patent cases over the next two decades, the Court has greatly picked up its patent pace, granting certiorari in 12 patent cases since 2002. (For historical and statistical analysis, see John F. Duffy, The Federal Circuit in the Shadow of the Solicitor General, 78 Geo. Wash. L. Rev. 518, 522 (2010), and Timothy B. Dyk, Foreword: Does the Supreme Court Still Matter?, 57 Am. U. L. Rev. 763, 764-65 (2008).

It is no surprise that the Supreme Court’s interest in patent cases has increased. Intellectual property now accounts for as much as 80% of the value of American corporations, and Congress has considered but failed to pass patent reform legislation in each of the last five congressional sessions. But increasing its patent docket has required the Court to depart from its usual criteria for granting certiorari. Because the Federal Circuit has virtually exclusive jurisdiction over patent cases, patent law does not give rise to circuit conflicts—the usual ground for Supreme Court grants of review. Thus, the Court has taken patent cases solely because they present matters of significant national importance, and has leaned heavily on the Solicitor General’s advice, with more than 10 percent of the Supreme Court’s calls for the views of the Solicitor General over the last 10 years arising in patent cases. See Duffy, supra, at 530.

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