UQ--Court reviews discretionary and fewer hearings each year

Because Supreme Court review is essentially discretionary, it is increasingly rare for the Court to hear an argument concerning Intellectual Property rights. However the Supreme Court will critically review cases that belong in one of four distinct categories. These include cases in which: (1) lower court decisions conflict, (2) lower courts have departed from accepted and usual court proceedings, (3) an important federal question is decided, and (4) lower courts have departed from Supreme Court precedent. This article provides practitioners with some guidance in determining whether the Supreme Court is likely to review a lower court decision on an Intellectual Property issue.

The U.S. Supreme Court plays a crucial role in the field of intellectual property ("IP") as the final arbiter of IP rights based on federal law.1 This means that the Supreme Court provides ultimate guidance in most core areas of IP law, including patents,2 copyrights,3 trademarks and trade dress,4 which are governed by federal statutes. While many states may still have statutes on their books or common law precedents governing IP rights in the fields of patents, trademarks, trade dress and unfair competition, for the most part federal law is clearly dominant in these areas today.5 Federal IP law is based either on federal statutes providing for exclusive coverage in areas such as patents and copyright,6 or practical recognition that federal law provides all the relief necessary, making parallel state law claims superfluous. One notable exception to this federal law dominance is the law of trade secrets, but even here, new federal statutes are beginning to encroach in this area by providing alternate bases for protecting against trade secret theft.7 Given the Supreme Court's preeminent role the field of IP rights, it is important to understand the basics of advocacy and presentation of cases before the Supreme Court, particularly when dealing with IP cases. For many years now, most of the Supreme Court cases have been essentially discretionary, based on its certiorari jurisdiction.8 Since the beginning of the Rehnquist Court in 1986, that discretion has been exercised only in limited circumstances. This is reflected in the fact that since the late 1980's, the Supreme Court has only been agreeing to hear argument in roughly seventy-five to eighty cases each Term, rather than the 150 or more that were typically reviewed each year during the Burger Court years.9 In the past decade, a total of fewer than twenty-five of these cases involved IP rights in some fashion or another. That means the Supreme Court hears argument, on average, in only two or three IP cases each year, with no cases being heard in some years. How the Supreme Court goes about deciding which cases to hear when dealing with issues involving IP rights requires an understanding of the Supreme Court's review process, together with a brief review of some of the cases it has heard in this area. This article provides practitioners with some guidance in the area of Supreme Court review of IP cases.