Waiting on the Supreme Court

Well, the Supreme Court definitely is taking an interest in patent law. Last week the Court agreed to take two more patent cases. In addition to prior cases involving when successful patent infringement defendants can recover their attorney's fees and and when software can be patented, the Supreme Court now will hear cases involving how clearly a patent's claims must define the covered invention and whether patent claims can be infringed by multiple parties acting together.

Both new cases, as well as the previously accepted cases, present areas of legal uncertainty that could benefit from clarity. Whether the Court provides clarity or confusion will not be known until at least summer, when the decisions are expected, but what are innovators to do in the meantime?

To begin, patent attorneys and our clients should realize that in agreeing to take these patent cases the Court has not (yet) created new legal uncertainty. To varying degrees, the questions under consideration this Court term have been questions in the minds of patent attorneys for years. We should be used to dealing with precisely this type of uncertainty, even if previously the Supreme Court had not shown a spotlight on these particular legal questions. 

Ultimately, we will get answers on some important questions in patent law. The Court may very well answer those questions in ways that some of us dislike, or in ways that create new questions, but but at least we will get some direction. As we have seen recently, the Federal Circuit has struggled to provide clear direction for some of these issues, so hopefully the Supreme Court can at least deliver clear majority opinions.

In the meantime, the only thing that we know now that we did not know a year ago is that the Supreme Court will give us direction within the next six months or so. In our first-to-file patent system, six months will probably be too long to wait to file patent applications for today's inventions. For most of us, our best option will be to carry on, albeit while attempting to provide flexibility in the future and acknowledging the possibility of Court decisions that negatively impacts the work we are doing now.

Essentially, we wait.