Lessons From The Recent Supreme Court Term: Ordinary Rules Apply In Patent Cases

If the judges on the United States Court of Appeals for the Federal Circuit choose to reflect on the recently concluded Term of the United States Supreme Court, in which five of the six Federal Circuit decisions the Supreme Court reviewed were either reversed or vacated,1 they might take some solace by recalling Justice Robert Jackson's earlier observations concerning the meaning of higher court reversals:

"Whenever decisions of one court are reviewed by another, a percentage of them are reversed. That reflects a difference in outlook normally found between personnel comprising different courts. However, reversal by a higher court is not proof that justice is thereby better done. There is no doubt that if there were a super-Supreme Court, a substantial proportion of our reversals of state courts would also be reversed. We are not final because we are infallible, but we are infallible only because we are final."

Brown v. Allen, 344 U.S. 443, 540 (1953)(Jackson, J., concurring). Finality, which imposes closure and legal, doctrinal uniformity, represents one of the cardinal virtues of appellate authority. This Term, more than most in recent time, the Supreme Court exercised its finality often on patent issues, which prompts this Note.

It is indisputable that each of the Supreme Court's patent law decisions this Term possesses significance to patent law generally, with special importance respecting the distinct area of patent law and practice that each decision specifically addresses. It is perhaps less obvious, but potentially more significant to analyze the decisional arc of these Supreme Court decisions, especially if taken in an even broader context by looking back to earlier Supreme Court's earlier patent law decisions reviewing Federal Circuit judgments, to see if there are lessons to be drawn from a discernible decisional pattern. It appears there are such lessons, and from those lessons may be drawn some yet further conclusions, with an eye to predicting and shaping the direction of patent practice in the United States. That is the focus of this Note.

The principal lesson to be drawn is remarkably simple, yet worthy of deeper consideration. The decisional arc seems to teach that when the Federal Circuit has crafted a rule applicable to patent cases that in some way deviates from rules generally and usually applied in litigated matters outside patent law, especially where the rule appears to be a "bright line" test, or an exclusive decisional calculus, the Supreme Court vacates those judgments and re-emphasizes (usually sub silentio) that patent...