When Does the Supreme Court Decide Patent Cases?

The Supreme Court is the highest authority on questions of federal law.  However, of the 7,000 cases it is asked to review each year, it typically chooses to decide just 70-80 cases of exceptional importance.  Issues of federal law are therefore typically resolved by the circuit courts of appeals – in the case of patent law, by the United States Court of Appeals for the Federal Circuit, which has exclusive jurisdiction over appeals in patent cases.     

The Supreme Court will, from time to time, review decisions of the Federal Circuit.  From 2010-2020, for example, it reviewed 23 Federal Circuit decisions.  Those cases tend to fall into a few specific categories:

  • Correcting departures from Supreme Court precedent. On occasion, the Supreme Court perceives the Federal Circuit has departed from its precedent on an aspect of patent law and decides a patent case to reaffirm that precedent.  For example, the Supreme Court has interpreted 35 U.S.C. 101 to prohibit patenting “abstract ideas” and laws of nature.  Over the past 15 years, it has applied that interpretation to strike down certain patents on software and genetic testing, overturning contrary Federal Circuit rulings.
  • Changing rules that have proven undesirable. In some cases, a rule that has been adopted by the Federal Circuit has produced undesirable results, and the Supreme Court decides a patent case to establish a different rule.  For example, in TC Heartland v. Kraft Foods, the Supreme Court read 28 U.S.C. 1400(b) more narrowly than the Federal Circuit had done, to impose major limits on where – in which districts – a patent owner can sue an infringer.    
  • Resolving intra-Federal Circuit splits. Ordinarily, “circuit splits” – where two or more circuit courts reach different decisions on the same legal question – are a major reason for the Supreme Court to take a case.  Circuit splits do not arise in patent law, however, because the Federal Circuit has exclusive jurisdiction over patent cases.  However, the Supreme Court will sometimes decide a patent case to resolve a disagreement that has arisen within the Federal Circuit itself – for example between the majority and the minority of judges in a case the entire court has chosen to decide en banc.

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