A Good Term for the Federal Circuit on Patent Law

Going into this Term, the Federal Circuit had a fairly unenviable record—virtually every one of its judgments under review had been reversed or vacated since January 2008.  The sole exception, last Term’s Bilski v. Kappos, was nominally an affirmance, but because basically no one on the Court agreed with the Federal Circuit’s rationale, “it did not feel much like an affirmation,” as Paul Clement said at the time. Thus, Federal Circuit Judge Arthur J. Gajarsa was moved to wonder, “[a]re we becoming the ‘Ninth Circuit’ of the Twenty-First Century?” (No word on whether he received any complaints from the judges of the Ninth Circuit about that.)

This year, the Supreme Court granted cert in a whopping eight Federal Circuit cases (consolidated into seven arguments), which has to be some kind of record. The Federal Circuit has “lost” three cases so far this Term: General Dynamics v. United States, United States v. Tohono O’odham Nation, and Henderson v. Shinseki. But based on oral argument in the Federal Circuit’s three patent cases under review, I thought things were looking promising for the Federal Circuit in its “marquee” subject.

And indeed, the Federal Circuit has had a fairly good Term on patent cases, as the Supreme Court has affirmed in all three patent cases it took. To be sure, the Court did not adopt the same test the Federal Circuit used in Global-Tech Appliances v. SEB S.A.; and the Court adopted a different rationale in Board of Trustees of Stanford v. Roche Molecular Systems (although the Federal Circuit reached the same conclusion the Supreme Court did about the Bayh-Dole Act in an earlier case).

Today the Court affirmed in Microsoft v. i4i Limited Partnership, agreeing with the Federal Circuit’s longstanding position that under § 282 of the Patent Act, the invalidity of a patent must be proved by clear and convincing evidence. The opinion notes the Federal Circuit’s unwavering support of that conclusion (see slip op. at 3, 17) and even quotes approvingly and at length from a Federal Circuit opinion (id. at 17)—the first time the Court has done that (I think; correct me if I’m wrong) since Warner-Jenkinson v. Hilton Davis Chemical Co., 520 U.S. 17 (1997). Given that the Supreme Court ordinarily reverses or vacates in around 70% of cases (71% last Term), the Federal Circuit is on track to have a pretty good Term, although United States v. Jicarilla Apache Nation (argued April 20) is still undecided.

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