Certiorari in Patent Cases

Abstract

In the decade from 2010 to 2019, the Supreme Court has decided more patent law cases than in the prior three decades combined. A higher percentage of its docket has been patent cases--5.45%--than in any decade in the last century. A number of scholars have advanced theories of why this rate of review of patent cases has increased and provided quantitative analyses. Yet no scholarship to date has used qualitative data to investigate why the Supreme Court’s patent docket is increasing and what factors the Supreme Court considers in its review of patent cases. This paper shares statistics of the Supreme Court's review of patent cases and for the first time reports on qualitative interviews with former Supreme Court clerks about certiorari in patent cases.

In many ways, the results confirm prior hypotheses of the key factors in Supreme Court grants of certiorari in patent cases. For example, the interviews confirm the teachings of prior scholarship that the views of the Solicitor General and the number, type, and focus of amicus support play an outsized role in patent cases. However, the interviews contradicted other views from prior scholarship, such as familiar names of top Supreme Court advocates spurring certiorari in patents cases. As to why cases filed by these advocates have a higher rate of success, it appears that such advocates are simply more skilled at preparing petitions that address the considerations most important to the Court. The research presented in this Article also suggests that the narrative of the Federal Circuit as applying rigid rules rather than flexible standards urged by the Supreme Court is pervasive at the Court. The interviewees also suggest that patent cases are viewed as ideologically safe choices, which the author hypothesizes might be partially responsible for the increase in the Supreme Court’s percentage of patent cases in recent years of ideological division. This article concludes by advocating that the Supreme Court should consider one other factor in its decision on certiorari in patent cases: whether a decision in the case will support or undermine the stability and certainty of patent law.

Keywords: patents, patent law, certiorari, supreme court, justices, cert pool, solicitor general, amicus, amici, qualitative, quantitative, empirical, statistics

JEL Classification: K00, K41