The Supreme Court as "Prime Percolator": A Prescription for Appellate Review of Questions in Patent Law


Generally speaking, the Supreme Court of the United States is a tribunal with the final say on “what the law is.” But the desirability of the Supreme Court’s acting as “final law sayer” is questionable in patent law, where the Court primarily reviews the work of the Federal Circuit, a comparatively expert body having virtually exclusive jurisdiction over initial appeals. Nonetheless, in recent years, the Supreme Court has spoken repeatedly and forcefully on questions of substantive patent law. I argue that such Supreme Court activity is best justified and conceived not as directed toward final law saying, but instead as involving limited interventions to stimulate new or renewed judicial examination of important legal questions. Centralized appellate review in the Federal Circuit makes patent law unusually susceptible to doctrinal ossification. By engaging in periodic merits review of patent law doctrines that the Federal Circuit may have locked into place either too quickly or for too long, the Supreme Court can help initiate escapes from suboptimal legal equilibria. But the Court’s competence is limited. Consequently, when intervening in substantive patent law, the Court should generally leave primary responsibility for developing precise legal formulas to the Patent and Trademark Office, district courts, and the Federal Circuit.

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Assistant Professor, University of Texas School of Law

By uclalaw