Many have viewed the Supreme Court’s (SCOTUS) heightened activity in reviewing patent issues as substantially reshaping patent law, which was largely in the purview of the Federal Circuit until the early 2000s. This activity has raised concerns, because several recent decisions have overruled or substantially changed decades of Federal Circuit precedent and rejected prevailing scholarly work in favor of its pre-1982 precedent.
Patent scholars have proposed several theories to understand why SCOTUS increased its review of patent decisions. Some scholars view SCOTUS’s activity as an effort to reclaim its power from the Federal Circuit to determine substantive patent issues after remaining relatively dormant during the first 20 years of the Federal Circuit. Peter Lee, “The Supreme Assimilation of Patent Law,”U.C. Davis Law Legal Studies Research Paper No. 435, 2 (2015). In fact, during this period (1982-2001), SCOTUS heard only 10 patent cases and addressed substantive patent law issues in just a few cases. J. Jonas Anderson, “Patent Dialogue,” 92 N.C. L. Rev. 1049, 1051 N (2014).However, since 2004, SCOTUS has heard more than 20 patent cases.
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