The Supreme Court and parties are increasing interest in patent law

First, the Supreme Court’s increased interest in patent law tracks the rising importance of intellectual property in our society. As industrial manufacturing in the U.S. economy has declined, ideas have increasingly become our country’s economic lifeblood. The U.S. Patent and Trademark Office (PTO) has estimated that between 2010 and 2014 “the share of total U.S. GDP attributable to IP-intensive industries increased” by 10 percent, “from 34.8 percent in 2010 to 38.2 percent in 2014.”10 Apple’s supply chain may stretch around the world, but its packaging says “Designed by Apple in California.”11 The Supreme Court seems to appreciate the reality that we live in an innovative economy, and the rules that shape the protection and ownership of inventions are critically important.

Second, the economic importance of intellectual property has created a litigation environment in which companies are willing to make the investment required to take a case all the way to the Supreme Court. As formal trials become rarer across the spectrum, patent cases are the notable exception, and the monetary stakes that support that type of commitment also encourage parties to stick it out on appeal. Litigants have long known that the high reversal rate in the Federal Circuit gives trial losers a decent shot at relief on appeal. And increasingly litigants are thinking beyond the first level of appellate review. The Supreme Court’s interest in patent law has created a feedback loop in which parties begin to think earlier and more strategically about what issues they might take to the Supreme Court. That increases the pool of quality cert. petitions, often championed by specialist Supreme Court counsel, which in turn encourages the Court to take more cases.