This is my first entry in a series of posts with a different tone, presenting questions about why some aspects of U.S. patent law are the way that they are, and hazarding some guesses at the answer.
And the first question on my mind is simple: Why is the Supreme Court of the United States so active on patent law issues?
In recent years, the Supreme Court has focused a truly shocking amount of its attention on patent law:
(image courtesy of Patently-O)
The Court’s record in the 2010s – 17 patent law opinions in the last 4.5 years – is twice as many opinions issued in the entire 1990’s decade. This trend has several remarkable aspects:
- The frequency of Supreme Court review has intensified to the point where the patent law community hasn’t had sufficient time to implement the Court’s last major ruling before the next one issues, and so the Court ends up issuing opinions that primarily simply reiterate their last opinion.
- While this Court prefers to rule on many issues in a very conservative manner, adhering closely (arguably slavishly) to the letter of the law, the Court’s patent law decisions are extraordinarily activist, with opinions based very loosely on the text of any statute and heavy on exposition about how the Court wants to shape patent law.
- As Dennis Crouch notes: “We can expect that the trend will continue over the next several years with special focus on the new rules and procedures stemming from the America Invents Act of 2011.”
When discussing patent law, the Court expresses great interest in this area because it perceives trouble in an area of law with vital economic consequences. Fair enough. But patent law is hardly the only such area – and comparing the Court’s involvement in patent law with other areas of law, where problems threaten the vitality of our economy, reveals stark differences:
- Tax law: Federal taxation is a major driver of the federal budget, which has exhibited catastrophic strain and forced government shutdown. Federal taxation is also heavy topic of public discussion, since extensive debate over tax loopholes based on arguable legal interpretations are enabling massive avoidance of federal taxes.
Recent Supreme Court tax law cases: 0. Well, 1, if you count NFIB v. Sebelius, which was more about Obamacare than an actual tax issue.
- Securities law: The integrity of the stock market has profound importance for the economic health of the nation, including every pension plan and 401K in existence. Earthshaking revelations about shady securities practices abound, including the constitutionality of the exemptions from securities law enjoyed by Congress.
- Antitrust law: The steady progression of competitive consolidation over the past several decades (Time-Warner Cable, has led to unprecedented levels of market concentration, where over 40% of industries are dominated by four or fewer companies. Unfairly competitive practices abound.
Recent Supreme Court antitrust law cases: 0.
This background therefore begs the following Mystery of Patent Law: Why is the Supreme Court so feverishly active in the area of patent law?
I believe that the answer can be found, at least in part, in a few key aspects:
- Popular opinion. The perceived dysfunction of patent law has been a very popular topic for several years, and while no consensus about “reform” exists, the concept of patent reform rings loudly in trending culture.
- Academic focus. Even more vibrantly than in pop culture, patent reform is a wildly popular topic in legal academia. While I don’t expect Supreme Court justices to have their fingers on the pulse of legal academia, I do expect their clerks to exhibit such zeal for trendy legal topics.
- Unprecedented litigation volume and damages awards. Of course, the Supreme Court can only rule on appeals from lower courts, and the steady rise in patent litigation provides an ample base of appealable issues. Moreover, patent verdicts have scaled up to unprecedented levels, further emphasizing the importance of this area.
- Familiar legal concepts. With many administratively complex areas of law – including those noted above – the issues are extraordinarily complicated, and simply developing an understanding of the issue requires extensive, specialized knowledge. By contrast, the issues that the Supreme Court has chosen to review for patent law are either analogous to general and familiar legal concepts, such as the legal tests for injunctions and standards of review among the federal courts, or are theoretical enough to admit philosophical speculation, such as the definition of “obvious” and the definition of “abstract”.
However, these ostensibly plain terms are only superficially familiar. They have an extensive administrative history, and that the Court’s speculation, without regard to and uninformed by this history, is extremely damaging to this area of law. And as Judge Michel recently expressed, I believe very strongly that the Court’s uninformed meddling is adding chaos and turmoil to the field of patent law, rather than ameliorating it. The Court’s failure to see this correlation over the last several years is a blind spot in the Court’s disposition.
- CAFC as punching bag. The Court’s reversal rate of the CAFC has reached astronomical levels, with between 66% and 83% reversal rates over various recent periods. Even more astonishing are the unanimity of Court decisions, and the occasionally acerbic language of the Court’s review of CAFC verdicts. It appears that the Court particularly relishes opportunities to reverse the CAFC, for reasons that are largely unexplained.
I will conclude my speculation about the Supreme Court with an anecdote. My graduation from law school in 2001 coincided with the peak of trendiness of patent law as a hip area of practice. At that time, some veteran patent attorneys commented that this trend was terrible news for patent practitioners, since it would attract all kinds of unwanted attention. In retrospect, these observations were definitely prophetic. I believe that patent law would greatly benefit from a fading of public attention, which will allow the key players to get back to the business of actually fixing patent law (rather than grandstanding about it).