Elite Patent Law

Abstract

Over the last twenty years, one of the most significant developments in intellectual property law has been the dramatic increase in the number of patent cases decided by the U.S. Supreme Court. That same time period has also seen the emergence of a small, elite group of lawyers specializing not in any particular area of substantive law but in litigation before the Supreme Court. In recent empirical work, I linked the Court’s growing interest in patent law to the more frequent participation of elite Supreme Court lawyers in patent cases, particularly at the cert. stage. Among other things, I found that the proportion of cert. petitions in patent cases filed by elite lawyers has increased more than fivefold since the early 2000s and that, in patent cases, a cert. petition filed by an elite lawyer is 3.3 times more likely to be granted than a petition filed by a non-elite.

This article, written for a symposium on Administering Patent Law, builds on that prior work in two ways. First, it shows that elite Supreme Court lawyers are not only handling more patent cases at the Court itself, they are arguing a growing number of patent cases at the Federal Circuit, too. As recently as 2009, fewer than 1 in 100 Federal Circuit oral arguments were delivered by an elite Supreme Court advocate. Today, that figure is 1 in 20. In a similar vein, from 2008 through 2010, less than 10% of all elite Supreme Court advocates also presented oral argument at the Federal Circuit in a given year. Today, that figure has tripled, with one-quarter of elite Supreme Court advocates also delivering at least one argument at the Federal Circuit annually.

Second, this article considers the normative implications of having a small, relatively homogeneous group of lawyers play such a significant role in shaping patent law in the United States. The presence of elite advocates—who know well enough to deemphasize the technological aspects of patent cases when litigating before the Justices—could help explain why the Supreme Court has generally shied away from disputes involving the core requirements of patentability, such as nonobviousness, even though doctrinal disruption in those areas would be particularly useful. Ultimately, however, elite advocates’ involvement in patent cases may be beneficial: as non-specialists in patent law, they can help alleviate problems that have arisen due to the centralization of patent appeals in the semi-specialized Federal Circuit.

Keywords: patent law, Supreme Court, Federal Circuit