Why The Solicitor General Has Tremendous Power Over The Patent System

from the is-that-good-or-bad? dept

We’ve been surprised at how often the Supreme Court has been taking patent lawsuits lately. Historically, the Supreme Court felt that they were mere business disputes, and not worth wasting the time of the Justices who could focus on more important “Constitutional” issues. However, with this recent focus on patent disputes, some Supreme Court observers are suggesting that the Court is finally questioning the patent rulings coming out of CAFC, the special federal circuit court that was set up in 1982 to centralize patent case appeals. The wonderful book Innovation and Its Discontents covers the creation of CAFC and how much damage it’s done to the patent system over the years by steadily increasing the power of patent holders while widening the scope of what’s patentable. So, if the Supreme Court is now questioning CAFC’s decisions on a regular basis, who is helping them make those decisions? According to the article, it’s the Solicitor General who is currently 10 for 10 in patent cases when asked to give an opinion to the Supreme Court. The theory is that the justices aren’t happy with CAFC, but aren’t as experienced with patent issues, so they rely very much on the Solicitor General’s opinion. With that in mind, can someone send copies of Innovation and Its Discontents, Against Intellectual Monopoly and Math You Can’t Use: Patents, Copyright, and Software, among some others to the Solicitor General’s office?

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Comments on “Why The Solicitor General Has Tremendous Power Over The Patent System”

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Joe Smith says:

Court of Appeal for the Federal Circuit

Most of the problems with patent law can be laid squarely at the feet of the CAFC. The Supreme Court slapped them down in the eBay case but the KSR case presents the real opportunity for a true bitch slapping. CAFC can see the beating coming and have tried to do a pre-emptive strike by complaining that everyone is misinterpreting their TSM test for obviousness.

The following whining language comes from Dystar Textilfarben GMBH & Co Deutschland KG v. C.H. Patrick, Co., et al.(06-1088)

DyStar’s argument misreads this court’s cases and misdescribes our suggestion test, echoing notions put forth recently by various commentators and accepted in major reports. A 2003 report by the Federal Trade Commission, for example, quoted testimony of certain witnesses that this court requires “specific and definitive [prior] art references with clear motivation of how to combine those references” and requires the PTO to find “the glue expressly leading you all the way [to obviousness]” and “connect the dots . . . very, very clearly.” Fed. Trade Comm’n, To Promote Innovation: The Proper Balance of Competition and Patent Law and Policy ch. 4, at 11 (2003). Similarly, a 2004 report by the National Academy of Sciences summarized views of a few commentators that “standards of patentability—especially the non-obviousness standard—have become too lax as a result of court decisions” by the Federal Circuit, leading to the deterioration of patent quality. Nat’l Research Council, A Patent System for the 21st Century 3 (Stephen A. Merrill et al. eds., 2004) . . .

If everyone is misinterpreting a courts’ decisions the problem lies with the court.

Joe Smith says:

Constitutionality of the patent system

The following is a great passage on the constitutional limits on patent law:
At the outset it must be remembered that the federal patent power stems from a specific constitutional provision which authorizes the Congress “To promote the Progress of . . . useful Arts, by securing for limited Times to . . . Inventors the exclusive Right to their . . . Discoveries.” Art. I, 8, cl. 8. 1 The clause is both a grant of power and a limitation. This qualified authority, unlike the power often exercised in the sixteenth and seventeenth centuries by the English Crown, is limited to the promotion of advances in the “useful arts.” It was written against the backdrop of the practices – eventually curtailed by the Statute of Monopolies – of the Crown in granting monopolies to court favorites in goods or businesses which had long before been enjoyed by the public. See Meinhardt, Inventions, Patents and Monopoly, pp. 30-35 (London, 1946). The Congress in the [383 U.S. 1, 6] exercise of the patent power may not overreach the restraints imposed by the stated constitutional purpose. Nor may it enlarge the patent monopoly without regard to the innovation, advancement or social benefit gained thereby. Moreover, Congress may not authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available. Innovation, advancement, and things which add to the sum of useful knowledge are inherent requisites in a patent system which by constitutional command must “promote the Progress of . . . useful Arts.” This is the standard expressed in the Constitution and it may not be ignored. And it is in this light that patent validity “requires reference to a standard written into the Constitution.” A. & P. Tea Co. v. Supermarket Corp., supra, at 154 (concurring opinion).

It comes from the 1966 decision of the Supreme Court in Graham v. John Deere.

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