Supreme Court and top
patent court rarely see eye to eye
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[June 20, 2017]
By Andrew Chung
(Reuters) - The U.S. Supreme Court's unanimous backing on Monday of a
ruling by the country's top patent court was a rare instance of
agreement with a body whose decisions in that specialized area it
Tellingly, Monday's decision related to trademarks, not patents. Since
its term began last October, the Supreme Court has thrown out all six
patent-related decisions by the U.S. Court of Appeals for the Federal
Circuit, which was set up to handle such cases.
Since 2014, the high court has upheld the patent court in only two of 16
patent cases, a Reuters review showed.
The lack of agreement between the high court and the patent court
reflects a basic conflict at the top of the U.S. legal system over
intellectual property rights, which are critical to many industries.
The high court's pattern on patent law is part of a wider trend, under
Chief Justice John Roberts, of the court siding with business in legal
disputes that come before it.
Business interests have won a string of victories in the current term,
which is scheduled to end next week.
Through its repeated reversals of the patent court, the Supreme Court is
making it harder to sue companies using patents. That helps major
technology firms such as Google, Apple and Samsung, all frequent targets
of patent infringement lawsuits by "patent trolls."
Other industries, including drug and medical diagnostics companies, have
warned against weaker patent rights.
"The patent system has been weakened, and as far as I'm concerned the
Supreme Court is unaware of that," said Paul Michel, who retired as
Federal Circuit chief judge in 2010.
Michel said the high court's decisions had created huge uncertainty for
companies and investors over patent rights and could affect research and
development and innovation.
Reached by Reuters, a representative for the Federal Circuit declined to
The Supreme Court's patent cases this term have been significant,
including one involving Apple and Samsung over smartphones. In that
case, the justices said the Federal Circuit misinterpreted the law on
In another major case, the Supreme Court repudiated a 27-year-old
Federal Circuit precedent and tightened where patent lawsuits may be
filed, a blow to the "trolls," or entities that generate revenue by
suing over patents.
"Itís pretty safe to say that it's one of the most impactful decisions
of the term," said Allyson Ho, a business lawyer, at a U.S. Chamber of
Commerce event on Friday.
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A general view of the U.S. Supreme Court building in Washington,
U.S., November 15, 2016. REUTERS/Carlos Barria
In an exception that perhaps proves the rule, the high court on
Monday upheld the Federal Circuit's decision to strike down a law
that prevents disparaging names from being trademarked. The Federal
Circuit also handles some trademark cases.
The justices have sometimes adopted a condescending tone toward the
Federal Circuit's patent rulings.
During arguments in a 2014 case, Roberts suggested the Federal
Circuit was failing at streamlining patent law, one of the reasons
for its creation in 1982.
Supreme Court Justice Samuel Alito wrote in an opinion that same
year that the Federal Circuit "fundamentally misunderstands what it
means to infringe" certain patents.
When the patent court was founded, the judges "saw their mission as
making patents stronger, and the Supreme Court thought it went too
far and started to reel them in," said Rochelle Dreyfuss, a
professor of law at New York University who has studied the court.
"Now the question is whether the pendulum has swung too far in the
She said the patent court was doing a better job explaining its
rulings. It recently seated several new judges, and Sharon Prost,
viewed as less pro-patent than her predecessor, became chief judge
Duke University law professor Arti Rai said the high court seemed to
disapprove of treating patent law differently from other areas of
The situation could spark further debate over the future trajectory
of the specialist court, Rai said. For several years, attorneys,
judges and professors have sparred over whether the court should
retain exclusive control over patent cases.
Some observers note that other appeals courts also go through
periods of high reversal rates.
Carter Phillips, who frequently argues patent cases, said that since
the Federal Circuit was the sole appeals court to decide patent
issues, the Supreme Court was more likely to review only those
rulings it thinks are wrong.
(Additional reporting by Lawrence Hurley; Editing by Kevin Drawbaugh
and Peter Cooney)
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