Academic journal article Iowa Law Review

Elite Patent Law

Academic journal article Iowa Law Review

Elite Patent Law

Article excerpt

I. Introduction

Patent law, the conventional wisdom goes, isn't for everyone. It's the legal domain of scientists. Engineers. Chemists. Molecular biologists. Your J.D. won't even let you practice law at the Patent Office unless you also have a bachelor's degree (or an "equivalent" amount of academic credit) in certain science or engineering fields.1 Judge Learned Hand, in a famous opinion assessing the patentability of purified adrenaline, eloquently lamented "the extraordinary condition of the law which makes it possible for a man without any knowledge of even the rudiments of chemistry to pass upon such questions as these."2 Judge Samuel Kent-who was later impeached and imprisoned for lying to federal investigators about sexual harassment allegations3-put it somewhat less eloquently when he derided the judges of the patent-focused Federal Circuit as "people wearing propeller hats."4

But perceptions of patent law as a specialized, esoteric area of practice -and of patent lawyers as pocket protector-sporting aficionados of geeky headwear-are increasingly wrong.5 Over the past two decades, the country's most prominent attorneys have begun to gravitate toward patent cases. In the Supreme Court's 2016 Term, for example, former Solicitor General Seth Waxman argued a remarkable four of the six patent cases heard by the Court. Other lawyers arguing patent cases that Term included four former Assistants to the Solicitor General (William Jay, Deanne Maynard, Carter Phillips, and Andrew Pincus) and the former dean of Stanford Law School (Kathleen Sullivan). Combined, those six lawyers have presented oral argument to the Justices over 200 times. Patent specialists, they are not.

That the Supreme Court would even hear six patent cases in a single Term is noteworthy, too. As Figure 1 below indicates, from 1982 (the year the Federal Circuit began operation) through 2000, the Supreme Court heard more than one patent case in a single Term only once (in 1998), and it often didn't hear any.

In a recent article, I linked the Supreme Court's increased interest in patent law to the increased participation of elite Supreme Court lawyers in patent cases, particularly at the cert. stage, when the Court is weighing whether to grant review.6 (As explained in more detail in that article, I define an elite Supreme Court lawyer as someone who has presented oral argument at the Court in five or more cases in the current and ten preceding Terms, combined.7 All of the lawyers mentioned a couple paragraphs ago easily qualify as elite.) In patent cases, the proportion of cert. petitions filed by elite Supreme Court lawyers has increased more than fivefold since the early 2000s and has more than doubled since 2010. Over precisely the same time period (2002 through 2017), the rate at which the Supreme Court granted cert. in patent cases more than doubled. And those granted petitions are disproportionately filed by elite advocates. In a patent case, the Court is over three times more likely to grant one of their petitions as compared to a petition filed by a lawyer outside that group. There is thus reason to think that the Supreme Court's increased interest in patent law is due at least in part to the presence of a small group of high-profile lawyers-no more than 30 strong-increasingly appearing in patent cases.8

This Essay builds on my prior work in two ways. First, it shows that elite Supreme Court litigators are not only handling more patent cases at the Court itself, they are also increasingly arguing patent cases at the Federal Circuit. As recently as 2009, fewer than 1 in 100 Federal Circuit oral arguments were delivered by an elite Supreme Court advocate. Today, that figure is about 1 in 20. In a similar vein, from 2008 through 2010, fewer than 10% of all elite Supreme Court advocates also presented oral argument at the Federal Circuit in a given year. Today, that figure has tripled, with about one-quarter of elite Supreme Court advocates also delivering at least one argument at the Federal Circuit annually. …

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