Previous congressional delegation proves Court action is predictable and reliable.

For these reasons, “the patent code, much like the Sherman Act, is a common law enabling statute, leaving ample room for courts to fill in the interstices or to create doctrine emanating solely from Article III’s province.”15 Indeed, “a significant portion of U.S. patent law, including some of the most important and controversial patent law doctrines, is either built upon judicial interpretation of elliptical statutory phrases, or is devoid of any statutory basis whatsoever. Thus, while Congress and the courts each have a hand in constructing the latticework of patent law, judges . . . are the principal architects.”16 Even if patent law is a complex and intricate area of law, it should be comparatively easier for the Supreme Court to understand than the complex statutory and regulatory schemes on the Supreme Court’s docket because patent law features judge-made complexity and intricacy. In fact, many of the patent law doctrines that critics charge the Supreme Court with misunderstanding are the creation of the Supreme Court itself (even if not necessarily this particular composition of the Court).17 It defies reason to conclude that the Supreme Court – the top judges in the country – is incapable of understanding an area of law of which they, and their colleagues on the federal bench, are the principal authors. Perhaps the critique is more muted. Perhaps the criticism is not that the Supreme Court is incapable in theory of understanding, or has always misunderstood, the law of patents. Rather, perhaps the critique is that the Supreme Court does not understand the current body of doctrines and legal principles that govern patent law. Since 1982, patent law has been. As an initial matter, it is implausible that the Supreme Court is incapable of understanding the legal doctrines and principles crafted by the Federal Circuit. To be sure, the Federal Circuit has more knowledge of, and experience with, its version of patent law than the Supreme Court. The Supreme Court is a generalist court that handles, at most, a couple of patent cases a year, whereas the Federal Circuit is a specialized court that handles hundreds of patent cases a year.20 But that does not mean that the Supreme Court is incapable of understanding the patent law principles that do come before it. As a generalist court with a limited docket, the Supreme Court frequently has less experience with legal doctrines than the lower courts it reviews, whether the issue be criminal sentencing, administrative law, or bankruptcy. But the Supreme Court Justices (and their clerks) are highly intelligent and skilled legal minds who are perfectly capable of learning the legal doctrines and principles relevant to the cases on their docket, and there is no reason to think this is less true with patent law principles originally crafted by the Federal Circuit. After all, these principles were crafted by other judges not much different than the Supreme Court Justices – the majority of Federal Circuit judges lack a scientific background and had limited experience with patent law before joining the bench.21 Moreover, the contention that the Supreme Court does not understand the Federal Circuit’s version of patent law treats the Federal Circuit’s version as the “correct” or “true” version of patent law and the Supreme Court’s departure from it as a misunderstanding, mistake, or error.22 But the Federal Circuit is an inferior federal court, and “[t]he Supreme Court is the ultimate judicial authority on patent law.”23 Given the significant discretion Congress has given to federal courts to craft patent law, and the Supreme Court’s position at the top of the federal court system, for the most part, the Supreme Court cannot misunderstand patent law because Congress has delegated to the Supreme Court primary responsibility to define what patent law is, at least within the broad and unrestrictive boundaries of the statute and subject to normal constraints on common law decision making like stare decisis.24 In truth, critics contending that the Supreme Court does not understand the Federal Circuit’s version of patent law really mean that they prefer the public policy choices made in the Federal Circuit case law to those made in the Supreme Court decisions, a point I return to in Part III