Is the Supreme Court Concerned with Patent Law, the Federal Circuit, or Both: A Response to Judge Timothy B. Dyk
15 Pages Posted: 4 May 2017 Last revised: 31 May 2017
Date Written: May 3, 2017
This essay is a response to Hon. Timothy B. Dyk, Thoughts on the Relationship Between the Supreme Court and the Federal Circuit, 16 CHI.-KENT J. OF INTELL. PROP. 67 (2016). In it, I address the reasons for the Supreme Court's engagement with patent law. In other words, is the Court interested in patent law itself, or is there something about the Federal Circuit as an institution that has garnered the Court's gaze. I conclude it is a combination of the two. The Court is concerned with certain aspects of patent doctrine, but it is also concerned with the Federal Circuit, particularly its penchant for bright-line rules. The essay also addresses interesting dynamics in the Supreme Court's patent cases, such as the pairings of certain cases, where the Court addresses the Federal Circuit's interpretation of an earlier case. Overall, I view the Court's recent interventions as a mixed bag. Some have been successful -- such as the rejection of the strict "teaching-suggestion-motivation to combine" test in the obviousness context. Others, such as its foray into patentable subject matter, have gone off the rails. Regardless, the Supreme Court is likely to remain engaged with patent law for the foreseeable future.
Keywords: Supreme Court, Federal Circuit, patent, KSR, formalism
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