SKGF_Presentation_The Supreme Courts Renewed Interest In IP_April 2007
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The Supreme Court has recently taken a renewed interest in intellectual property cases, reviewing and reversing several Federal Circuit rulings over the past decade. This suggests the Supreme Court is unhappy with the Federal Circuit's handling of patent law and prefers flexibility over bright-line rules. There are indications the Supreme Court views IP law as more important today than in the past and wants to ensure consistency with how other types of cases are handled. The talk examines this growing tension between the two courts with implications for how patent cases may be decided going forward.
SKGF_Presentation_The Supreme Courts Renewed Interest In IP_April 2007
- 1. The Supreme Courts Renewed Interest in IP Ken Bass April 2, 2007
- 2. Who is this guy? Clerk for Justice Hugo Black (1969 Term) Private Practice focusing on appellate cases since 1970 Joined SKGF in 2000 Adjunct Professor of Appellate Practice at Georgetown Past President American Academy of Appellate Lawyers Involved in Supreme Court Patent cases Co-counsel in KSR v. Teleflex 2
- 3. Looking Back at History The Supreme Courts View of IP law in the early 1970s A technical, fairly arcane field A subject of lesser importance Judicial self-awareness of limitations The lack of regional consistency The National Court of Appeal movement 3
- 4. The Birth of the Federal Circuit The 1975 Conference on Appellate Justice The National Court of Appeals proposal meets resistance The focus shifts to a specialized nationwide court for patent cases The birth of the CAFC in 1982 4
- 5. The Supreme Courts Initial Reaction Wait and See IP issues remained of secondary public importance The Courts membership had not changed all that much The Percolation Policy 5
- 6. The Picture Begins to Change Markman v. Westlaw Instruments April,1996 517 U.S. 370 CAFC decision Judges, not juries, decide issues of claim construction Supreme Court decision Agreed! 6
- 7. An Outlier Contributes to Change Nelson v. Adams USA April, 2000 529 U.S. 460 CAFC decision Attorneys fees awarded against individual who in fact controlled the defendant corporation and was added as a party after trial Supreme Court decision (unanimous) Improper to sanction someone not a party at the trial and thus no sanctions can be imposed 7
- 8. The Pace of Change Quickens Festo v. Shoketsu May, 2002 535 U.S. 722 The CAFC decision Any amendment forecloses DOE The Supreme Court decision (unanimous) Flexibility restored 8
- 9. The Pace of Change Quickens (cont.) Holmes v. Vornado June, 2002 535 U.S. 826 The CAFC decision Per Curiam the CAFC has appellate jurisdiction over patent counterclaims based on long-standing CAFC precedent The Supreme Court decision (unanimous) No you dont! 9
- 10. The Growing Tension eBay v. MercExchange May, 2006 126 S. Ct. 1837 The CAFC decision Final injunctions are almost automatic once there is a finding of infringement and validity The Supreme Court decision No presumption of issuance, the same rules apply as in all civil litigation Two different thumbs on the scale Justice Kennedy The Chief Justice 10
- 11. The Growing Tension (cont.) MedImmune v. Genentech January, 2007 127 S. Ct. 764 The CAFC decision No Article III standing if a licensee in good standing contests patent validity The Supreme Court decision There is an Article III case and controversy (8-1 decision) 11
- 12. KSR v. Teleflex ???? 2007 The CAFC decision Applied the well-established TSM test for determining obviousness as a first hurdle The arguments at the Supreme Court Wide hostility to an absolute, first hurdle approach Whats likely to emerge? 12
- 13. What Does it All Mean? The Supreme Court has become engaged once again in IP issues The Supreme Court is not happy with the CAFCs handling of patent issues The Supreme Court dislikes bright-line rules The Supreme Court avoids giving clear guidance on how patent cases should be decided The Supreme Court recognizes the central importance of IP in todays flat world economy 13