Academic journal article Michigan Law Review

Certiorari, Universality, and a Patent Puzzle

Academic journal article Michigan Law Review

Certiorari, Universality, and a Patent Puzzle

Article excerpt


In its 2016 Term, the Supreme Court dedicated nearly ten percent of its docket to patent cases.1 The Court's decision to grant review in each of these cases-as well as almost every other patent case on its docket since 1982- presents a puzzle. This is because the most important determinant of a case's chance of getting on the Supreme Court's docket is a circuit split: When two appellate courts have decided the same issue in conflicting ways, the chances of Supreme Court review jump significantly.2 But practically every appeal in a patent case makes its way to the United States Court of Appeals for the Federal Circuit.3 This is by design: In 1982, Congress reformed the structure of patent appeals to provide uniform and expert decisionmaking in patent litigation.4 This unusual appellate structure complicates the Supreme Court's process for setting its agenda. Because the Federal Circuit is the sole arbiter of patent appeals, there is no possibility of a circuit split.

How, then, does the Supreme Court decide whether to grant certiorari to review a patent case? Despite the apparent importance of the Supreme Court's docket management systems,5 as well as the recent rapid rise in patent cases on the Supreme Court's docket,6 the Court's agenda-setting process for patent cases has received only occasional attention.7

The Supreme Court's patent-related certiorari decisions seem still to be strongly influenced by the existence of a split. These splits, however, are of a different sort. Rather than consider whether two courts of appeals have decided the same issue differently, the Supreme Court appears to consider, at least in part, whether two fields of law apply the same transsubstantive doctrine differently. If the Supreme Court perceives patent law and copyright law to apply different standards for, say, the defense of laches, then the Court seems more likely to take the case. Other scholars have observed other variables that may portend the Supreme Court's interest in granting certiorari to review a patent case. John Duffy, for example, has examined the solicitor general's influence over the Supreme Court's certiorari decisions in patent cases.8 Timothy Holbrook has likewise described a range of patentspecific and patent-agnostic explanations for the Court's interest in patent law.9 My study of each petition for certiorari in the Supreme Court's patent docket from its 1982 Term through its 2016 Term builds from (and expands upon) this existing work. The new cue for certiorari that I have identified in this Article-the field split-is a significant, complementary explanation for the Court's behavior in patent cases.10

The Supreme Court's interest in resolving such field splits-conflicts between substantive applications of (potentially) transsubstantive doctrines-merits further scrutiny. After all, the Court's attention to circuit splits is usually justified by its preference for geographic uniformity in federal law. But the usual uniformity-related rationales for reviewing circuit splits are mismatched to field splits. The legitimacy of the federal law may be at stake when the meaning of statutes varies state-by-state,11 but such stakes are not obvious when willfulness means something different in patent law than it does under the Fair Credit Reporting Act.12 Field splits likewise do not give rise to forum shopping concerns, nor do they impose any special burden on multistate actors.13

Why, then, does the Court bother to take these cases-especially when space on the docket is at a premium?14 The answer must lie outside the usual explanations for the Court's certiorari decisions: Neither a general regard for uniformity nor these cases' substantive importance to core patent doctrine explains the Court's interest.15 One possibility is that a process defect- something about the way the Court decides which cases to hear-leads it to err when making certiorari decisions in patent cases. That possibility, though potentially intriguing, quickly proves unpersuasive. …

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