The Battle for Patent Law

Over the last 15 years, the Supreme Court has demonstrated an increasing interest in patent cases. As a result, tension between the Supreme Court and Federal Circuit has escalated, leaving many with a clouded understanding of which court has the final say on patent law, likely affecting the application and practice of the field.

For perspective on the topic, Law360 sought comment from Finnegan partner James R. Barney. Says Barney, "The Federal Circuit is much more interested in the technical merits of a case as a general matter." "The Federal Circuit was able to lay down the patent law relatively uninterrupted for nearly two decades of its existence, but that started to change in the 2000s, when the tests the Federal Circuit created began to face greater attention in a series of hard cases that went all the way up to the Supreme Court, which criticized them as overly rigid."

Barney suggested that the Supreme Court looked at obviousness, Section 101 [of the Patent Act] and enhanced damages and attorneys' fees and pushed back on [the Federal Circuit’s] bright-line tests, adding, "The Supreme Court said the Federal Circuit has to look at the totality of the circumstances. It can't simply apply a bright-line rule."

Barney addressed several reasons why patents continue to draw increased congressional and public attention, including high damages awards, such as front-page litigation battles between technology titans, the rise of non-practicing entities, and a concern that the USPTO has been issuing subpar patents. He added, "The Supreme Court is responding to a perception that there is a problem in the patent field with too many low-quality patents that are causing unnecessary litigation and litigation costs."