How Much Has the Supreme Court Changed Patent Law?

23 Pages Posted: 5 May 2017 Last revised: 13 May 2017

See all articles by Paul R. Gugliuzza

Paul R. Gugliuzza

Temple University - James E. Beasley School of Law

Date Written: May 4, 2017

Abstract

The U.S. Supreme Court has decided a remarkable number of patent cases in the past decade, particularly as compared to the first twenty years of the Federal Circuit’s existence. No longer is the Federal Circuit “the de facto Supreme Court of patents,” as Mark Janis wrote in 2001. Rather, it seems the Supreme Court is the Supreme Court of patents. In the article at the center of this symposium, Judge Timothy Dyk of the Federal Circuit writes that the Supreme Court’s decisions “have had a major impact on patent law,” citing, among other evidence, the Court’s seventy percent reversal rate in Federal Circuit cases.

In this essay, I suggest that the Supreme Court’s effect on patent law has actually been more limited, for two reasons in particular. First, the Supreme Court’s recent decisions, though substantial in number, have rarely involved the fundamental legal doctrines that directly ensure the inventiveness of patents and regulate their scope. Second, the Supreme Court’s minimalist approach to opinion writing in patent cases frequently enables the Federal Circuit to ignore the Court’s changes to governing doctrine.

Keywords: Patent Law, Supreme Court, Federal Circuit

Suggested Citation

Gugliuzza, Paul R., How Much Has the Supreme Court Changed Patent Law? (May 4, 2017). Chicago-Kent Journal of Intellectual Property, Vol. 16, p. 330, 2017, Boston Univ. School of Law, Public Law Research Paper No. 17-16, Available at SSRN: https://ssrn.com/abstract=2962682

Paul R. Gugliuzza (Contact Author)

Temple University - James E. Beasley School of Law ( email )

1719 N. Broad Street
Philadelphia, PA 19122
United States

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