Gugliuzza and Lemley have produced an important contribution to the literature about the Supreme Court’s engagement with patent law issues over a forty-year period since 1982. That was the year that the Court of Appeals for the Federal Circuit (CAFC) began having exclusive appellate court jurisdiction over patent cases. Their article considers whether certain tenets of the conventional wisdom about the Supreme Court’s patent cases are myths or reality.
Does the Court distrust the CAFC? Has the Court’s rather large volume of patent cases (62 since 1982) had major impacts on patent law? Does the Office of the Solicitor General (OSG) always get its way in patent cases? Conventional wisdom would answer all three questions in the affirmative. Gugliuzza and Lemley conclude that the conventional wisdom is correct in some respects, but not so much in other respects.
To set the stage for their analysis, the article offers a novel categorization of the Court’s patent cases: 1) the common law of patents (e.g., subject matter, validity, and infringement); 2) statutory interpretations of the patent act; 3) jurisdiction or procedure issues; and 4) non-patent substantive law issues (e.g., antitrust). Gugliuzza and Lemley characterize the common law and statutory interpretation cases as “core” to patent law, while jurisdiction, procedure, and non-patent cases are, in their parlance, “peripheral” to patent law.
The article reports that since 1982, the Court agreed with the CAFC’s ruling in only 8 of 29 core patent cases (27%) and disagreed in 21 others. In 24 of these cases, the Court addressed a rules v. standards issue, which the Court resolved in 20 cases by adopting a standard instead of a rule. The authors conclude that it is “fair to say that the Supreme Court has tried to rein in the rule formalist proclivities of the Federal Circuit, at least in cases involving core patent law doctrines of validity, infringement, claim construction and remedies.”
Gugliuzza and Lemley say that CAFC has the worst record with the Court in its patent remedy cases and does only slightly better in jurisdiction and procedure cases. Yet, if one excludes the Court’s remedies/jurisdiction/procedure patent cases, the Court agreed with the CAFC in 42%, including 5 of the 10 most cited Supreme Court patent rulings. The CAFC’s overall record is, the authors conclude, not as bad as the conventional wisdom might suggest.
One might infer from the rather large number—62—of Supreme Court patent cases since the mid-1990s that the Court has had a major impact on patent law. Some rulings—particularly those on patent subject matter, the nonobviousness standard , claim construction, venue, and injunctive relief—have, the authors agree, had profound effects on patent law.
Yet Gugliuzza and Lemley conclude that the Court’s high impact patent cases are more the exception than the rule. For one thing, more than half—33 of 62, or 53%—of the Court’s patent cases involved peripheral issues. Of the Court’s 29 core patent cases, the authors report that many involved issues that do not come up very often, including 3 cases interpreting § 271(f). They are consequently skeptical of claims that the Court has had major impacts on patent law.
OSG’s exceptional record of success in patent cases has been documented in several prior studies. Gugliuzza and Lemley report that the Court agreed with OSG in all but 4 of the 45 CAFC cases in which OSG filed briefs. On the merits, the Court ruled as OSG recommended in 38 of 48 cases (79%). OSG has had even greater success in cases involving core patent issues (23 of 25 cases).
Yet, the authors report that OSG has been less influential with the Court in patent cases since 2010. In 4 of 9 cases, the Court affirmed the CAFC despite OSG’s recommendation to reverse. OSG has also had less success with the Court when appearing as a party. The Court followed OSG’s recommendation in only 5 of 12 such cases.
Gugliuzza and Lemley identified three patent eras since 1982. The first era ran from the founding of the CAFC in 1982 to 1994, during which the Court reviewed no patent cases. The second is what they call the Rader era, running from 1995 to 2014, during much of which Judge Rader was Chief Judge of the CAFC. They name the third era as modern. While the CAFC was 0 for 10 in the Rader era between 2002 and 2009, I was surprised to learn that the Court agreed with the CAFC at a higher rate during the Rader era than in the modern era.
While Gugliuzza and Lemley do not set forth a grand unified theory of the Court’s patent jurisprudence, they have provided their readers with much useful data and a nuanced perspective on the evolution of the Court’s patent cases since 1982.
