Patent Law Revisionism at the Supreme Court?

37 Pages Posted: 2 Aug 2013 Last revised: 12 Feb 2014

See all articles by Ted M. Sichelman

Ted M. Sichelman

University of San Diego School of Law

Date Written: November 20, 2013


The Supreme Court generally may overrule, revise, or disregard its precedent. However, the Court lacks such discretion when Congress codifies prior judicial precedent. Yet, the Court has repeatedly subverted Congress’s codification of scienter standards for indirect patent infringement. This Essay describes in detail the Court’s bungled — essentially revisionist — interpretations of its precedent in Aro Mfg. Co. v. Convertible Top Replacement Co. in 1964 and in Global-Tech v. SEB in 2011. Indeed, this Essay suggests that the Court in Global-Tech engaged in intentional obfuscation, very likely via a law clerk and unbeknownst the Justices. In the very least, the Justices abdicated their responsibility to fully review the applicable cases and legislative history in forming the decision.

Keywords: indirect infringement, inducement, patent law, contributory infringement, congressional intent, stare decisis, precedent, scienter

JEL Classification: K3, O34

Suggested Citation

Sichelman, Ted M., Patent Law Revisionism at the Supreme Court? (November 20, 2013). Loyola University Chicago Law Journal, Vol. 45, pp. 307-343, 2013 (symposium volume), Available at SSRN:

Ted M. Sichelman (Contact Author)

University of San Diego School of Law ( email )

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