Solicitor General fails---says no to changing patent precedent and fails to convince the court.

In patent law, the SG acts as the government's fire dispatcher, situated at the intersection between the PTO, the President, and other executive branch principals and agencies. In this role, the SG decides which alarms are genuine, which fires can be extinguished, and when and where firefighters should be allocated. When private litigants allege that a PTO regulation diverges from the President's preferences or the Supreme Court's precedents, the SG decides whether these allegations are true and whether the issue is worthy of the Court's review." ' If the SG decides that review is warranted, the SG selects the United States' position, given the relevant legal and policy (and political) considerations. In selecting this position, the SG canvasses the government, notifying the President and other non-PTO actors that the matter is significant and, if necessary, asserting its litigating authority to override the PTO's established policies.

Myriad, analyzed in Parts II and III, exemplifies this pattern. Opposition to the PTO's guidelines strengthened over time. Public interest litigants challenged Myriad's patents on the BRCAi and BRCA2 genes in Europe and then the United States."' The SG's control of the Myriad litigation brought the PTO's guidelines to the attention of the SG's principals and other agencies and ensured that the United States' position integrated their perspectives. Moreover, the Myriad litigation provided these parties with an opportunity to contract the scope of patent-eligibility without directing the PTO change its rules. By requesting the Federal Circuit (and later Supreme Court) to invalidate Myriad's patents, the SG shifted the costs of upsetting reliance interests to the courts and avoiding unconstitutional takings issues."1 2

Not every Supreme Court case involves this pattern. In some cases, the PTO will be the only interested government actor. In others, the Court will be able to identify whether the lower court's decision is worthy of review without the SG's recommendation.1 3 Moreover, the fire-alarm model is an idealization. Despite its best efforts, the SG sometimes fails to identify all government interests."14 Even if the SG succeeds in doing so, the SG sometimes fails to persuade the Supreme Court to adopt its recommendations. These failures are unavoidable features of the litigation process-whether litigating authority is centralized in the DOJ and SG or distributed throughout the PTO and other agencies.