Aaron Tang .

Posted Thu, October 6th, 2011 7:46 am

The Court’s patent jurisprudence

Today’s community thread focuses on the impact that the Court has had on patents and patent law in recent years – and will have in future years, including through this Term’s cases.  We invite all readers to participate in a discussion on the four questions in the threads below.


  • Aaron Tang – 0 Promoted Comments

    In this thread, discuss whether the Court is well-suited to decide patent cases to begin with. Do you think patent litigation is unique in that, as an often-times esoteric pocket of practice, the Justices may be less apt to understand the intricate issues at stake and the implications of their decisions? If so, what (if anything) can or should be done about it?

    • Peter Menell – 1 Promoted Comment

      Notwithstanding its growing appetite for patent cases – with three decisions last Term and three already on this Term’s docket – the Supreme Court’s patent jurisprudence appears rudderless. The only broad assessment of the 20 patent cases decided by the Court over the past two decades is that the Court lacks any real consensus on how to interpret the Patent Act, the constitutional clause undergirding the Act, and the historical role of the courts in evolving the patent system. Most cases reflect cautious ad hoc nudges. The Court’s majority rarely articulates a clear method or overarching interpretive theory.

      Perhaps the same can be said for other areas of Supreme Court jurisprudence, but the Court’s lack of engagement with the Patent Act’s distinctive characteristics is notable. If nothing else, the fact that so much of the patent law originated in 19th century jurisprudence and still lies outside of the statutory text ought to generate some first principles thinking about how to construe such a distinctive legal regime. As the Bilski case illustrated, the textualist mold does not fit a system with a mixed heritage tracing back over 200 years. See The Mixed Heritage of Federal Intellectual Property Law and Ramifications for Statutory Interpretation . The rapidity and unpredictability of technological change have continually buffeted courts with new challenges. Jurists have drawn upon their common law background, tort law and equitable principles, and pragmatism to evolve the patent system. This response system in conjunction with Congress’s institutional impediments to responding quickly to technological change has enhanced the judiciary’s substantive imprint on federal intellectual property law. Congress has perpetuated these evolutionary processes – both expressly and implicitly – throughout U.S. history. The Supreme Court ought to acknowledge and confront the peculiar nature of the patent statute and the Court’s historical role and responsibility candidly. Justice Stevens’ concurring opinion in Bilski provided a model of candor and historical integrity. Unfortunately, he fell one vote short of bringing the provenance of patent doctrines into the governing law. See Forty Years of Wondering in the Wilderness and No Closer to the Promised Land: Bilski’s Superficial Textualism and the Missed Opportunity to Return Patent Law to its Technology Mooring .

      Hope springs eternal at the start of each new Term. Perhaps the Court will provide a coherent framework for interpreting patent law. But don’t hold your breath.

    • Matthew Osenga – 1 Promoted Comment

      As another Supreme Court term began this week with several important patent cases on the docket (and several more that might be added), I believe that the Supreme Court is well suited to decide patent cases. These cases often concern issues of statutory interpretation, something that the Supreme Court handles frequently and has a well-developed jurisprudence for doing so. Doctrines in patent law often require a “fresh” look by another court. The Supreme Court can provide finality on certain controversial issues in the law.

      There are several recent examples of cases where the Supreme Court used statutory interpretation to reverse Federal Circuit rulings. In eBay v. MercExchange (2006), the Court held that nothing in the Patent Act eliminated the traditional reliance on equitable factors when determining whether to grant an injunction. Indeed, § 283 requires injunctions to be granted “in accordance with the principles of equity”. In Bilski v. Kappos (2010), the Court held that § 101 does not require that inventions meet the Federal Circuit’s “machine-or-transformation” test to be patentable subject matter.

      Because appeals of virtually all patent cases are decided by the Federal Circuit, they account for a significant portion of that court’s docket. The Supreme Court also provides a fresh look at areas of patent law that have become stale because the Federal Circuit developed a test a long time ago that has simply become accepted law. In KSR v. Teleflex (2007), the Court held that the Federal Circuit’s long-held “teaching-suggestion-motivation” test was not the only test for determining obviousness. The Court may, however, have tipped the balance too far in the opposite direction with the “obvious to try” language in the opinion.

      Finally, the Supreme Court can provide the “final” word on certain patent law doctrines. As an example, in Microsoft v. i4i (2011), the Court finally determined that clear and convincing evidence is required to invalidate a patent once it has been duly issued by the U.S. Patent & Trademark Office.

    • Colleen Chien – 1 Promoted Comment

      The Supreme Court is like an absentee parent who doesn’t know what the kids are up to, but issues directions nonetheless. Sometimes their directions are hard to follow (Bilski), sometimes they are confusing (KSR), but sometimes they are dead-on (Ebay). Because their time is precious, they tend to get the right questions before them, and because of who they are, they get the best advice and advocacy. As a parent, I know that kids behave better when someone is watching. So in my opinion, while the Supreme Court’s patent jurisprudence could definitely be improved, some supervision is better than none.

  • Aaron Tang – 0 Promoted Comments

    In this thread, address whether you believe the Court can be characterized as “pro” or “anti” patent based on its recent decisions.

    • Scott Kieff – 3 Promoted Comments

      Both sides of today’s debates about patents have some odd bedfellows—and the Supreme Court is no different. Those focusing on the importance of strong patents have included unions, many Republicans, small businesses, and some large pharmaceutical companies. Those focusing on the problems of over-enforcement of patents have been many Democrats joined by a number of big businesses from the high technology sector including Microsoft, Google, IBM, and Cisco, as well as some other large pharmaceutical companies. In the recent Supreme Court patent cases, both Justice Scalia and Justice Breyer have been critical of patents. And in the 2006 Supreme Court eBay decision, both Chief Justice Roberts and Justice Ginsburg spoke in favor of strong patents. Similarly, our prior patent system, 1952 Patent Act, was endorsed by leading jurists of various political stripes including Giles Rich, an Eisenhower appointee, Learned Hand, generally viewed as a centrist, and Jerome Frank, generally viewed as a populist. And the 1982 creation of the Federal Circuit to strengthen the patent system by bringing case law more into line with the 1952 Patent Act was a major domestic policy initiative of President Carter that was signed into law with much fanfare by President Reagan.

    • Ted Sichelman – 1 Promoted Comment

      In order to answer this question, it’s necessary to define the somewhat nebulous terms “pro-patent” and “anti-patent,” since patents come in many different flavors and have widely varying uses and effects, particularly in different industries—which causes many scholars to use these terms in varying senses. For simplicity, I take “pro-patent” to mean a generally sanguine view about the role of patents in R & D and commercialization in a variety of industries, such that strengthening patent protection, expanding patentable subject matter, making patents harder to challenge, mandating injunctions, increasing damage awards and the like, generally increases social welfare. An “anti-patent” approach would be just the opposite—specifically, one that focuses on limiting patent protection in order to reduce costs of patenting to consumers, other inventors, commercializers, and so-forth.

      One root difficulty in pegging the Court as “pro-patent” or “anti-patent” is that very few scholars, commentators, and policymakers are decidedly pro-patent or anti-patent. Rather, most believe that patents can be an economic boon or drag depending on the specific situation. And, as one might expect, scholars and commentators often disagree on the precise role patents play in any given circumstance.
      The Supreme Court tends to lie in the same middle ground as the scholars, taking a more pro-patent approach in some situations, while a more anti-patent approach in others. For instance, in i4i v. Microsoft, the Court’s holding that validity must always be shown by clear and convincing evidence—even for uncited prior art—was decidedly pro-patent. Yet, in KSR v. Teleflex, the Court adopted a standard that made it much easier than prior law to show a claim is obvious and, hence, invalid.

      Perhaps a more interesting question is why the Court flips so often from pro-patent to anti-patent decisions. Here, I think the answer is that most of the justices do not have well-developed views on how the patent system actually functions in practice. As I’ve written elsewhere, I believe most patent scholars’ debates stem not from theoretical differences about the general aim of the patent system—to optimally promote innovation—but rather about the empirical effects of the system in real-world circumstances. So while Professors Scott Kieff and Pam Samuelson may agree that patents ultimately should promote innovation, they strongly differ in their views of just how well patents—particularly strong patents—perform that job.

      Most of the current justices on the Court, on the other hand—Justices Breyer and Kennedy excluded—seem not to hold particularly strong views on the economic impact of patents. (And, in this regard, as Professor Kieff recognizes in his post, patent politics do not cut very cleanly along party lines.) Thus, instead of relying on policy to guide them to results, most of the present justices have relied on the power of precedent (e.g., Global-Tech v. SEB, Quanta v. LG, i4i v. Microsoft) or plain language statutory interpretation (e.g., Bilski (majority), ATT v. Microsoft, eBay (majority)) in most of their opinions.

      Since these modes of decisionmaking do not seem a priori to result in particularly pro- or anti-patent decisions—at least in the cases they have taken (compare, e.g., Global-Tech and Quanta with i4i and Bilski)—the effect in any specific case is somewhat random. Certainly, in some cases, Justice Kennedy or Breyer—who appear to hold more developed views—step in to convince some or all of the justices to follow their policy-oriented thinking (e.g., KSR (majority), eBay (concurrence), LabCorp (dissent from DIG)). And I don’t disagree with Matthew Sag, Tonja Jacobi, and Maxim Stytch’s finding that political and judicial ideology played an important role when all IP cases from 1954 through 2006 are considered. But nowadays, at least in patent cases, policy-driven decisionmaking seems more the exception than the rule. So, all in all, it’s perhaps most accurate to describe the majority of the Court as “patent agnostic.”

  • Aaron Tang – 0 Promoted Comments

    In this thread, share your reactions to any of the Court’s recent patent decisions such as Bilski v. Kappos, Microsoft v. i4i, and so on. Were those cases rightly or wrongly decided? And how have they impacted the patent practice on the ground?

    • Rob Merges – 1 Promoted Comment

      Before answering, a preliminary note is in order. In many specific cases the (capital C) Court has not really been trying to change litigation per se. With the (admittedly large) exception of its 1996 Markman opinion, when the Court grants cert in a patent case its audience – some would say “target” – is the judges of the Federal Circuit. Members of the patent bar serve more as spectators to the great clash of ideas and policies, rather than direct combatants. Even so, it is the practicing lawyers and their clients – the inventors and entrepreneurs who depend on and care about the patent system – who must deal with the aftermath, eager to figure out how the landscape might have shifted during the course of the latest Court-to-court battle.

      And the landscape has shifted, noticeably in many cases, and seismically in a few. The “Markman hearing” was a fundamental innovation in patent litigation, ushered in by the Court’s first real substantive foray into Federal Circuit era patent law in 1996. And so too with injunctions: the eBay revolution that began in 2006 continues, and actually represents a rare instance of a case that reverberates far beyond patent law, into the much larger arena of legal remedies generally. The KSR case, on nonobviousness, was another large-scale shift. It, along with eBay, did much to change the fundamental litigation calculus confronting patent owners and accused infringers. In both cases, the Court administered a course correction to the pro-patentee doctrinal trends of the Federal Circuit – which was itself born, in 1982, of a desire to change course from the perceived weakening of patents in the 1960s and 1970s.

      Putting aside these major movements, it must be said that most Supreme Court cases in the patent field have more to do with ongoing supervision of the Federal Circuit than with large-impact areas of patent law. Many cases in recent years have been interesting, to be sure (at least for us patent types), but hardly earth-moving in their significance. For every eBay, there seem to be two or three Merck v. Integra, Microsoft v. AT&T, or Global-Tech v. SEB cases – which turn not on large differences in policy vision but on small matters of doctrine or statutory interpretation. (The first two cases involved narrow issues of technical infringement under section 271 of the Patent Act; the last an exceedingly fine distinction in the law of induced infringement, itself a fairly obscure area of patent law.) The overall impact of these “supervisory” cases on inventors and patent owners has been small, but taken together they communicate a very clear message: the Supreme Court, and not the Federal Circuit, is the supreme court of patent law.

      Which leads me to this point: The Court’s ongoing supervisory presence has an impact coequal with that of the big earth-moving cases such as eBay. Litigators who lose at the Federal Circuit, especially on a point of law that is arguably inconsistent with the general run of regional circuit law, or which instead just seems jumbled or wrong-headed, now have recourse to the big Court. A cert petition has a chance; players in the patent system know this. So the Federal Circuit sometimes corrects itself when it is persuaded that the Court is otherwise likely to. And litigators can sprinkle in some recent Supreme Court citations when briefing to the Federal Circuit – a not so subtle reminder that the big Court may be watching the outcome of the case. And in general, older Supreme Court cases (which the Court cites liberally in its recent patent jurisprudence) have acquired a new currency; they crop up more in opinions and briefs. This is good news: the field is elevated when gems from the pen of Cardozo, Brandeis, Taft, and Hand (the greatest Justice never to actually serve on the Court) are put back on display and injected into mainstream patent debates.

      So the answer to the question is this: specific holdings in Supreme Court cases have impacted patent practice in very significant ways. But the even bigger impact has come from the very fact of renewed Supreme Court interest in the field.

    • Tom Field – 1 Promoted Comment

      As reflected perhaps most notably in the Diehr dissent, relations between the Supreme Court and the CCPA were not particularly cordial. Judge Giles S. Rich in particular seemed unwilling to go along, possibly leading the Court to regard his persistence there and on the Federal Circuit as evidencing disrespect for their capacity to trump.

      I, however, have always seen his persistence rather as reflecting a desire to better educate the Court on intricacies of the patent system. To the extent that decisions based on his opinions in Chakrabarty and Diehr were sustained, he succeeded, but barely.

      Prior to being briefly quoted recently in i4i, Justice Stevens’ concurring opinion in Bilski made the most extensive reference to his views. Yet, even there, Rich’s early views were used to cast doubt about what he intended in State Street Bank. Moreover, Justice Stevens seems not to credit that his views might have permissibly evolved during more than forty years on the bench. Indeed, the majority opinion in Bilski explicitly fails to embrace what Rich seems to have intended there.

      By way of contrast, it is interesting to consider that Judge Learned Hand was quoted with approval in Pfaff, Bonito Boats, Graham and three other cases spanning many years. As the author of nearly 200 controlling patent opinions, Judge Hand and his views of patent law deserve respect. Yet it seems a shame that Giles Rich, writing roughly three and a half times as many such opinions, has been largely ignored by the Court.

      Ever the optimist, I hope that Justice Sotomayor’s quoting him, however briefly, in i4i signals willingness to make further use of his wealth of experience in future patent cases.

  • Aaron Tang – 0 Promoted Comments

    The court has two major pending patent cases on its docket: Kappos v. Hyatt, and Mayo v. Prometheus Labs. In this thread, share your views on how the Court should (or will) rule on either of these cases and why.

    • Ronald Mann – 1 Promoted Comment

      For me, the most interesting thing to watch in the coming year will be the degree of respect the Court accords the Federal Circuit in its patent cases. For a decade the Court treated the Federal Circuit almost as harshly as the Ninth Circuit, moving steadily to rein in the Federal Circuit’s seeming “patent exceptionalism.” But in the span of ten days at the end of the 2010 term the Court handed the Federal Circuit affirmances in all three of last Term’s patent cases. First, Global Tech Appliances, Inc. v. SEB S.A. affirmed the Federal Circuit’s holding that a Hong Kong based company that reverse-engineered a deep fryer could be held liable for “actively inducing” infringement even though it acted on the basis of a legal opinion that its product did not infringe. Then in Board of Trustees of Stanford University v. Roche Molecular Systems, the Court rebuffed a challenge to the Federal Circuit’s conclusion that the Bayh-Dole Act vests title to federally funded inventions in the inventor rather than the government contractor. Finally, in the most important of the cases, Microsoft Corp. v. i4i Limited Partnership, the Court acquiesced in the Federal Circuit’s longstanding conclusion that patent challengers must establish invalidity by “clear and convincing evidence” even when they present prior art that the Patent Office never saw.

      Although the first two cases involved relatively narrow and technical questions, the last case signed off on the Federal Circuit’s treatment of one of the central questions for the structure of the patent system. The term to come will offer more patent cases, the most important of which are No. 10-1150, Mayo v. Prometheus Labs and No. 10-1219, Kappos v. Hyatt. Because both of those cases follow on recent decisions from the Court, we can observe how the tides of respect might have shifted. In Mayo (set for argument in December), the Court considers a case in which the Federal Circuit has repeatedly approved a patent on a medical test that approaches the boundaries of rules that forbid patents on natural phenomena. Two terms ago in Bilski the Court was skeptical about the breadth of patentable subject matters the Federal Circuit has tolerated, but readily affirmed its decision to deny the business-method patent there. This case – granting a marginal patent – will test the Federal Circuit much more closely.

      Kappos, not yet set for argument, follows directly on i4i’s examination of the deference due Patent Office decisions on patentability. The issue here is the standards for introducing and assessing evidence in district court proceedings challenging a patent denial. Because the district court’s authority rests on a distinct provision of the Patent Act from the provision at issue in i4i (used by holders of issued patents to enforce their patents against alleged infringers), the decision in i4i sheds so little light on the correct answer that the Court apparently thought plenary review necessary. Whether the Court will defer to the Federal Circuit’s structural sensibilities will be central to the disposition of the case.

    • Scott Kieff – 3 Promoted Comments

      Hyatt v. Kappos is a case about how much deference the Patent Office should get when its decisions are reviewed in court. Good arguments can be made on both sides of the case about some zany behaviors – one side pointing to examples of trifling respect given some decisions below and the other side to trifling use of evidence in the record in some of those initial decisions. But the seriously under-appreciated dimension of the case is the connection between it and the newly passed patent statute. Back in 1999 when the Supreme Court first started to apply the Administrative Procedures Act (APA) to the Patent Office in Dickinson v. Zurko, the Court had a difficult time figuring out what standard of review should apply to Patent Office decisions because at the time the organic statute – Title 35 – did not give the Patent Office the hallmarks needed to earn such deference under administrative law. But this year’s newly passed patent law is incredibly generous in that regard, giving the Patent Office significant substantive adjudicatory powers and significant substantive rule making authority. That result is contrary to the recommendations given Congress for several years by the government’s Public Patent Advisory Committee, which was to consistently but gently push back against the Patent Office’s desires for such power and deference. See, e.g., 2010 PPAC Annual Report, at p. 17. It also is contrary to the legal authorities the Supreme Court has previously cited with favor when interpreting the APA, including the Attorney General’s Manual on the APA written by Tom Clark, later Justice Clark, when the Act was being promulgated, which explicitly stated that the APA was not designed to apply to the Patent Office. For a summary of those authorities, see In re Lueders, 111 F.3d 1569, 1574-79 (Fed. Cir. 1997). But it also is all but pre-ordained by the Supreme Court’s 1999 decision in Dickenson v. Zurko when combined with the broad powers granted by the new patent statute.

      Two practical problems are likely to follow when the case comes out at expected. The first is that more deference for the Patent Office’s decisions will inject a massive new layer of politics into the patent system. A more politicized patent system will just further entrench those companies with the largest lobbying shops on K Street. The second practical problem is how the Office will manage this new power. The Patent Office already has a team of administrative judges that is about 100 strong. The many adjudication procedures it now has to carry out under the new patent statute have already lead to reports that this team of administrative judges will have to quickly grow by at least another several hundred. Questions about how to manage so many administrative judges have not been well resolved in other areas of the US legal system, like the Social Security Administration; and nor have questions about whether they are even legal. See, e.g., Pierce, Richard J., What Should We Do About Administrative Law Judge Disability Decisionmaking? (July 20, 2011). GWU Legal Studies Research Paper No. 573; GWU Law School Public Law Research Paper No. 573. Available at SSRN: http://ssrn.com/abstract=1890770 (arguing that SSA ALJs now play roles in the bureaucracy that are not constitutionally permissible because they are “officers of the United States” who are accountable to no one and who are insulated from presidential control by three layers of for cause protections).

      • Scott Kieff – 3 Promoted Comments

        Mayo v. Prometheus raises exactly the same questions about what types of technologies are even eligible for patent protection that opened the door for the pure political manipulations we’ve seen several times before in our recent patent system. Questions about what should be patented are best answered by looking to the substantive requirements long contained in our patent system – such as those relating to the prior art and the extent of a patent application’s disclosure. That’s why the patent system came up with those rules, which easily weed out the many overly facile examples patent novices often debate, such as methods of teaching antitrust courses in law school. Unfortunately, the Supreme Court keeps opening the door to an additional requirement – called statutory subject matter – by deciding to take cases like Bilski v. Kappos in 2010 and Mayo v. Prometheus in 2011. While Section 101 of the Patent Act was written in 1952 to rule in as fair subject matter for patents a set of categories that some had argued might have been ruled out, the Court’s repeated decision to hear cases on that question has some seriously pernicious ripple effects, including that it lets determinations about the scope of permissible subject matter become the political plaything of the Patent Office.

        Fears about pure political influence driving outcomes at the Patent Office on this question of patentable subject matter are not without foundation in recent history, under both Democratic and Republican administrations. The elimination of effective patent protection for computer software through the Supreme Court’s 1972 decision in the Benson case was the direct result of intensive influence wielded by Nicholas Katzenbach, who became general counsel of IBM in 1969, over the U.S. Department of Justice, which he formerly ran as Attorney General during the Kennedy/Johnson Administration. And a similar influence was applied, albeit ultimately unsuccessfully, during the first Bush administration, in the lead up to the 1994 Federal Circuit decision in the Alappat case. The Patent Office Commissioner had made the decision to reconstitute the office’s internal Board of Appeals to hold a rehearing before a specially packed Board designed to reject the patent on a type of software. Today’s Patent Office already gives special treatment for patents relating to so-called “green” energy technologies under a Democratic Administration and there is little reason to think it wouldn’t swing to give special treatment to technologies relating to fossil fuel sources of energy under a Republican Administration.

    • Katherine Strandburg – 1 Promoted Comment

      On December 7, 2011, the Supreme Court will hear argument in the case of Mayo Collaborative Services v. Prometheus Labs., No. 10-1150, which addresses the scope of patentable subject matter. The case concerns patents on medical diagnostic procedures, which are based solely on the observation that certain natural bodily responses to well-known drugs are correlated with drug efficacy and toxicity. Essentially, any physician who measures the bodily level of a drug metabolite and knows about the correlations to toxicity and efficacy unavoidably infringes these claims. Though the range of patentable subject matter is broad, the Court for more than 150 years has interpreted the patent statute to ban patenting laws of nature, physical phenomena, and abstract ideas. Mayo is the third patentable subject matter case to come before the Court in the past five years, after a twenty-five-year hiatus. In 2006, the Court granted and later dismissed certiorari in Lab. Corp. of Am. Holdings v. Metabolite Labs., Inc., over a dissent by Justices Breyer, Stevens, and Souter. Lab. Corp. involved medical diagnostic claims similar to those at issue in Mayo. In 2010, in Bilski v. Kappos, the Court focused on the ban on patenting abstract ideas, striking down patent claims to “the concept of hedging” risk. In granting certiorari in Mayo, the Court returns to the question of medical diagnostic process patentability, and hence confronts the ban on patenting natural phenomena, which was not at issue in Bilski.

      I submitted an amicus brief in Mayo on behalf of the American College of Medical Genetics, the American Medical Association, the American Hospital Association, the American Society of Human Genetics, the Association of American Medical Colleges, the Association for Molecular Pathology, the Association of Professors of Human Medical Genetics, the College of American Pathologists, the Florida Hospital Association, the Minnesota Hospital Association, and the Minnesota Medical Association. These associations are concerned about the potentially enormous impact that broad and potentially overlapping patent claims to scientific information about the meaning of test results would have on the ethical and effective practice of medicine. The fact that the patent claims require the administration of a drug and the measurement of a metabolite level does not change the fact that they essentially claim guidelines for medical care based on statistical correlations. If claims of this sort are patentable, not only might a doctor infringe multiple patents by considering the results of a battery of diagnostic tests, but each test might be the subject of multiple, overlapping, patented guidelines based on different studies. As a doctrinal matter, the claims run afoul of the ban on patenting physical phenomena, which implements the constitutionally grounded policy that patents may be granted only to “Inventors” so as to “promote Progress in . . . the useful Arts.” U.S. Const. art. I, § 8, cl. 8. The patentable subject matter inquiry therefore must consider whether an applicant who has discovered a natural phenomenon is the inventor of a patentable application of the phenomenon or idea, rather than the “competent draftsman” of a merely conventional application of the phenomenon, as the Court found was the case in Parker v. Flook, 437 U.S. 584, 590 (1978). Failure to consider whether a patent applicant has invented something patentable (rather than just made a scientific discovery and applied it in a completely conventional way) would eviscerate the ban on patenting natural phenomena.

      Whichever way the Court rules in this case, its ruling is likely to be of great importance to patentability at the interface between science and technology (and medicine in particular), including, for example, the issues surrounding patents on DNA sequences and genetic diagnostic tests, which the Court may soon be asked to consider in the case of Association for Molecular Pathology v. U.S. Patent and Trademark Office, where the Federal Circuit recently denied petitions for rehearing.

  • R. David Donoghue – 1 Promoted Comment

    The Supreme Court opens another term with three more patent cases on its docket, and possibly more to be added. Over the last several years, the Supreme Court has reinserted itself into the patent law after leaving the Federal Circuit to be the final arbiter of patent law for many years. I can appreciate the arguments that the Supreme Court has not established an identifiable vision for its patent law direction. But in fact I think they have established a direction toward fuzzier rules and away from the Federal Circuit’s desire for bright line rules and business predictability. For patent litigants and patent holders that leads to greater indecision, but it also maintains the flexibility of the law allowing district judges and Federal Circuit judges to shape the law to fit the facts of individual cases without being required to make unjust or inequitable decisions based upon bright line rules

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