Late last week, the New York Times noted that the Supreme Court had agreed to hear a pair of cases that might lead to “patent trolls” being forced to pay the attorney’s fees of successful defendants in patent infringement lawsuits. Of course, the patent community had been discussing the Supreme Court’s new patent cases for weeks. Predicting the outcome of Supreme Court cases is best left to others, but the larger context of the recent treatment of patent cases by the Supreme Court shows that the decision to hear these cases are not a surprise and that an outcome perceived to reduce the strength of patents could be expected.
First, the current Supreme Court likes to hear patent cases more than prior Supreme Courts. Deciding what constitutes a “patent case” is not as easy as it sounds, but Professor Lisa Ouellette has a list of Supreme Court patent cases since 1952 at her Written Description blog. Based upon that list and the rather unsophisticated analysis of simply counting how many cases are listed per decade, the result is a rapid uptick in the number of patent cases per decade since 1980:
While the 2010s already have the most Supreme Court patent cases by far, we are only to the fall of 2013.
Second, the general trend of recent Supreme Court decisions has been to reduce the strength of patents. While the actual details of most decisions are more nuanced than simply making patents “stronger” or “weaker” overall, most of the recent Court decisions have tended to make patents harder to obtain and enforce. The Supreme Court effectively raised the obviousness bar in KSR v. Teleflex, which made patents harder to get and easier to invalidate in litigation. While many patent attorneys were left confused about the standards of patentability after the decision in Bilski v. Kappos, the outcome of that decision was the rejection of patent claims deemed too abstract. The ruling in Mayo v. Prometheus invalidated patent claims to what the Court considered to be directed to a law of nature. Just a few months ago, the Court ruled that isolated DNA was not patentable in Myriad Genetics. The lone recent Supreme Court decision that unambiguously affirmed the patentability of an invention, Bowman v Monsanto, was the overwhelmingly expected outcome.
Within the context of the Supreme Court’s increased interest in patent cases, no one should be surprised that the Court has agreed to consider patent law again this term. While there is no assurance that the Court will make it easier for defendants to recover their fees after a successful infringement defense, that result would be aligned with recent rulings.
Note: While the Supreme Court has considered patent cases since well before 1980, the creation of the Federal Circuit Court of Appeals in 1982 makes the 1980s the first decade of the modern era of patent law for purposes of the present analysis.