Supreme Court and the Federal Circuit, The: Visitation and Custody of Patent Law

Intellectual Property and Patents

Article Snapshot


Rebecca S. Eisenberg


Michigan Law Review First Impressions, Vol. 106, pp. 28-33, 2007


This article looks at how the Supreme Court treats appeals of patent cases.

Policy Relevance

Because the Supreme Court rarely offers detailed guidance to the Federal Circuit Court on patent issues, the Federal Circuit remains in charge of patent law.

Main Points

  • Since 1982, all appeals in patent cases are heard by the Federal Circuit Court of Appeals.

  • The Supreme Court rarely agrees to hear appeals of patent cases from the Federal Circuit. As a result, the Federal Circuit is in charge of the evolution of patent law from day to day.

  • The Supreme Court is mostly likely to hear patent cases when:
    • The case raises questions similar to those raised in non-patent cases.
    • The case conflicts with older Supreme Court patent cases.
    • The case involves a strong disagreement between Federal Circuit judges.
    • The Solicitor General or other key patent players urge that the case be heard.

  • In resolving patent cases, the Supreme Court rarely discusses older Federal Circuit cases. More discussion of Federal Circuit cases by the Supreme Court would help clarify the law.

  • So far, the Supreme Court’s decision in the patent cases of KSR v. Teleflex has clearly changed the outcome of one case, but seems to have had little effect on most cases decided by the Federal Circuit.

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