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Patents at the Supreme Court

The Supreme Court now has its hands full with patent cases. Among the biggest are:

  • eBay v. MercExchange (cert granted today, on the standards for injunctive relief in patent cases)
  • LabCorp v. Metabolite (on patentable subject matter)
  • Illinois Tool Works v. Independent Ink (on the patent/antitrust intersection; oral argument happens tomorrow — 11/29)

(Hal Wegner’s list of ten patent cases at the Supreme Court, annotated with briefing deadlines, is available via I/P Updates.)

Never mind Joe’s comment regarding eBay — “If the Court writes narrowly, it will be the most important patent case since Chakrabarty or Diehr. If the Court writes broadly, it will be the most important patent case (perhaps even the most important patent or copyright case) in a century.” — this is a blockbuster group. The number of cases active at the Court signals a major shift in the tenor of the law, and perhaps a rewriting of some fundamental structures of patent law as we’ve come to know them under the Federal Circuit. After all, if the Supreme Court simply wanted to give the Federal Circuit a big pat on the back, why would the Court take so many major cases? The nation’s highest court seems poised to re-assert its position as the supreme arbiter of American patent law.

But why now?

2 thoughts on “Patents at the Supreme Court”

  1. Joe Miller

    And the petitions in KSR (on how to determine whether an invention would have been obvious, and is therefore unpatentable) and Schering-Plough (on the antitrust consequences of “reverse payment” patent settlement agreements in name/generic pharmaceutical litigation) remain pending, awaiting briefs from the Solicitor General’s Office stating the views of the United States (briefs that the Supreme Court itself requested).

    As for “why now?”, I have two thoughts:
    (1) Chief Justice Roberts (who has participated in some of these grant votes, I think) may be interested in exploring IP questions. If he is more interested in the area than was Chief Justice Rehnquist, he could be a fourth vote for review.
    (2) Given the steady rise in interest in IP law at U.S. law schools, and the increased offerings in IP law at elite law schools, the clerk population is more likely to contain people with more interest in, and comfort with, IP questions than in years past.

  2. Joe Miller

    Didn’t quite finish that second point: Given that Supreme Court clerks play a significant role in vetting cases for review, through the process of writing memos for the “cert pool,” an increase in the number of IP-law-savy law clerks cannot help but increase the likelihood of a grant.

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