Thursday, December 13, 2012

Intellectual Property at the Supreme Court: Is the 'New Economy' Driving the Court's Docket?

Back in October's "Being a Patent Troll Now Patented" and "Nathan Myhrvold's Cunning Plan to Prevent 3-D Printer Piracy" I mentioned:
"There are a couple potentially big intellectual property cases up before the Supreme Court this term that I had intended to get to this week but won't."
That was two months ago and we haven't even had the names of the cases grace the pages of Climateer Investing.
Today I'll start to rectify the omission.

A few days after the Myhrvold post the SCOTUSblog asked the headline question:
The decline in the Court’s merits docket is of course old news to SCOTUSblog readers, from about 150 cases a year at the dawn of the Rehnquist Court to about half that in the recent years of the Roberts Court.  And of course, the rapid decline in the last few years is also noteworthy — from 84 in OT2010 to 75 last year to only 48 cases granted so far for OT2012.

What might not be quite so obvious is the relative rise of intellectual property cases on the Court’s docket.  A recent lengthy piece in the New York Times emphasized the role that patent litigation has played in a variety of “new-economy” sectors.  What we can observe from the Court’s docket is that the number of intellectual property cases has been increasing in recent decades, even as the Court’s docket has shrunk.  To be sure, the number of cases is so small that it is difficult without looking at the numbers over a long period of time to be sure that these numbers represent real long-term trends.  Still, the presence of four core IP cases among the 48 grants to date for OT2012 (Kirtsaeng v. John Wiley & Sons, Already LLC v. Nike, Bowman v. Monsanto Co., and Gunn v. Minton), 8% of the argument calendar, is remarkable.  For comparison, I count 5% IP cases in OT2011 (4/75) and 6% in OT 2010 (5/84).  To get a sense for longer trends, ten years ago the Court decided 3 IP cases out of 73 opinions (4%) and twenty years ago only 2 out of 114 (2%).

But before we jump on the “trendiness” bandwagon, there is another equally simple way to describe the trend in the Court’s docket – bashing the Federal Circuit.  All who read the Court’s IP cases know that many of the Justices seem to have lost confidence in the Federal Circuit, at least in part because of an excessive tendency toward a broad interpretation of patent rights.  This has led to an increasing willingness, reminiscent of the Court’s treatment of the Ninth Circuit in past years, to review relatively minor decisions from the Federal Circuit...MORE
That question  of how broad IP protections should be is at the heart of the two cases I was referencing, Kirtsaeng and Bowman. Follow the SCOTUSblog links for their coverage to-date or stop by the Supreme Court for the status pages of Kirtsaeng and Bowman.

We'll be back with more after the New Year on why these cases are so important.
For more backround see Reuters Nov. 30 piece: "The Roberts court’s fondness for intellectual property cases".