the Supreme Court’s erosion of patent rights Can the Supreme Court’s erosion of patent rights be reversed?
By Ron Katznelson, Ph.D. March 2, 2017 The late Justice Scalia once said that he generally did “not like patent cases.” It is all but certain that his vacancy will soon be filled by the conservative Judge Neil Gorsuch. Empirical evidence on Supreme Court decisions show that the more conservative a Justice is, the more likely he or she is to vote in favor of recognizing and enforcing rights to intellectual property.However, for the reasons explained below, I believe that on his own, Gorsuch’s joining the Court may at best have marginal effect on the Court’s trajectory in patent law doctrines. It is important to explore this in the context of the historical trends of Supreme Court jurisprudence in patent law.
A common refrain in the realm of patent commentary, blogs, and symposia, is to beleaguer the Supreme Court to keep its hands off the patent law. This exhortation is not new. The predecessor to the Court of Appeals for the Federal Circuit, the national appeals court for patents, had on occasion viewed Supreme Court review as detrimental because of the risk that the Justices would misunderstand and misapply patent doctrine.[ii] Commentators have since criticized the Supreme Court’s frequent failure to understand the patent law and craft effective doctrine.[iii] Donald Chisum, author of the leading treatise on U.S. patent law, has concluded that “the Justices seem to treat patent cases as second class citizens and write opinions that read as though they were dictated while standing waiting for the elevator.”[iv]
Cause for some of this criticism can be traced to at least three factors. The first is the political preferences and attitudes held by the Justices.[v] The second is the Justices’ lack of science and technology experience, never having been closely involved in discovery and invention. Lending support for this notion is the fact that Justices are nearly twice as likely to decide in favor of copyright owners as in favor of patent owners.[vi] All Justices are accomplished authors; none were inventors, scientists or entrepreneurs. With this background, Justices may simply be more sympathetic to the claims of an author against a copier than they are to the claims of an inventor against a rival producer. Third is the fact that all Justices are generalists without prior patent law experience. Thus, they often seek to eliminate patent “exceptionalism,” attempting to bring patent law in conformity with general legal principles.[vii] The resulting decisions reveal the Supreme Court’s holistic outlook as a generalist court concerned with broad legal consistency rather than fidelity to patent law’s underlying specialized and unique features moored in technology research, invention, and patenting processes. Unfortunately, as shown below, the adverse effects on patent rights due to the deviant patent doctrines arising out of the Court’s decisions far exceed the benefits of assimilation and conformity of the patent law with the general law.
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The bar chart below breaks down the decisions listed in the table above by the Justices’ votes (excluding neutral decisions), showing that only a small fraction were closely decides by a majority of 5 votes.
It therefore appears that patent decisions will seldom be close decisions in the future. Thus, unless would-be Justice Neil Gorsuch demonstrates extraordinary persuasive effect on his future colleagues, even if he should arrive at opinions favorable to patentees, he would be unlikely to tip many decisions of the Court in favor of patent holders. Inevitably, it would still be up to Congress to legislatively undo the Supreme Court’s harm to American patent rights.
https://www.ipwatchdog.com/2017/03/02/supreme-courts-erosion-patent-rights-reversed/id=78992/
-Not just judges need science and techlonogy background to handle patent cases, but lawyers hired by patentee also need that essential background (for example, lawyers need electric enginerring degree or other enginerring degrees for wireless patents infringement cases) to better understand inventions described in patents and effectively defend IPRs in courts.