Since 2000, the U.S. Supreme Court has been extremely active in patent law. The Supreme Court not only is taking more cases but also is addressing issues at the core of patent law, such as the law of obviousness and the doctrine of equivalents and its limitations. This dynamic is particularly noteworthy for two reasons. First, the existence of the U.S. Court of Appeals for the Federal Circuit means that, for the vast majority of patent cases and issues, there is a single appellate court that establishes national standards. As a result, Supreme Court intervention would appear to not be required. Second, in sharp contrast to patent law, the Supreme Court has been relatively inactive in the other primary federal intellectual property regimes, copyright law and trademark law. This disparity is particularly striking given that the regional federal courts of appeal still hear those cases and a variety of circuit splits exist that the Supreme Court has yet to resolve.
This essay explores potential reasons for the Supreme Court's activity. The first set of explanations are not specific to patent law or the Federal Circuit. These justifications, while helpful, cannot explain the disparate treatment of patent cases relative to copyright and trademark cases. The next set of explanations are specific to patent law and, particularly, the Federal Circuit. Admittedly, none of these explanations individually can account entirely for the Supreme Court's activity, but the hope of the essay is to offer some insight into the evolving dynamic between the Supreme Court and the Federal Circuit.