Patent Cases Before the Supreme Court

Among my many joys as an academic is teaching my Supreme Court Seminar once every year, in which the students are required to write 25-page seminar papers analyzing some aspect of the Supreme Court or its jurisprudence. I give them great freedom to write about whatever sparks their interest, which has resulted in papers in a variety of areas. I have truly learned as much from them as they have learned from me. One student this year is writing about the differences between the Supreme Court’s treatment of patent and copyright cases.

I did not want to interrupt the excellent commentary on the partial birth abortion case, so I thought I would wait to post some of the startling statistics from his presentation and paper. Since the Federal Circuit was created in 1982, the Supreme Court has taken 13 copyright cases and 16 patent cases. Nothing surprising there–a little greater than one intellectual property case per Term since 1982. However, since 1999, the Supreme Court has taken 9 patent cases, over half the total amount since 1982, and reversed the Federal Circuit in most of them. Even more startling is the fact that the Supreme Court has taken three patent cases just this Term. In an era when the Court’s docket has been steadily declining, as I have highlighted in previous posts, what do you think explains the Supreme Court’s sudden interest in patent cases, an area over which it has no special subject matter expertise? One obvious explanation is that the Court is trying to rein in what it might view as a rogue Federal Circuit, but I believe that there might be something more there. Any ideas?

UPDATE: It has been brought to my attention by a prominent academic that, depending on how one defines patent cases, October Term 2001 also had three patent cases. There is little doubt, however, that the recent interest in patent cases by the Supreme Court is a departure from its general post-1982 behavior. Thanks for the excellent comments on this post.