Myths and Reality of Patent Law at the Supreme Court
Boston University Law Review, Vol. 103, forthcoming, Temple University Legal Studies Research Paper No. 2023-04
86 Pages Posted: 27 Dec 2022 Last revised: 9 May 2023
Date Written: December 15, 2022
Over the past twenty years, patent cases have become a major component of the Supreme Court’s shrinking docket. The Court’s return to patent law after a long absence has inspired a rich literature theorizing about the Court’s agenda and critiquing its decisions. Those analyses, though differing in their particulars, have given rise to numerous conventional wisdoms about the Supreme Court and patent law: that the Supreme Court distrusts the Federal Circuit (the specialized appellate court that has exclusive jurisdiction over patent cases), that the Court places far more trust in the Solicitor General (who represents the executive branch in Supreme Court litigation), and that, for better or worse, the Supreme Court is now a major institutional player in the patent system.
But are those conventional wisdoms actually true? In this article, we separate myth from reality by presenting a novel quantitative and qualitative study of all patent-related Supreme Court cases since 1982, the year the Federal Circuit began operating. Our study questions whether many of the patent cases decided by the Court have actually been important to the patent system. Instead, we show that most of the Court’s patent-related cases have involved issues far from the substantive heartland of patent law and are rarely cited in subsequent litigation. Assessing the Court’s impact on the patent system, we argue, requires focusing on a small subset of decisions involving core doctrines of patent validity and infringement.
In those important decisions, the Supreme Court has been surprisingly deferential to the Federal Circuit. The cases in which the Federal Circuit has performed poorly (at least in the eyes of the Supreme Court) cluster around issues of statutory interpretation and jurisdiction or procedure. We also identify specific types of patent-related cases in which the Solicitor General wins far less frequently than usual. Those findings, among others, significantly advance our understanding of how specialization affects judicial decisionmaking and the development of the law. They also offer a glimpse of what the future might hold for patent law in an era of an imperialistic Supreme Court and a Federal Circuit staffed by a new cohort of judges who have significant experience with civil litigation in the federal courts.
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