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Former Solicitor General Seth Waxman’s recent remarks, framing our current age of patent law in the Supreme Court as “interesting times,” unquestionably captures the exhilaration of an active Supreme Court in this area of the law. Waxman knows his way around patent cases decided by the Supreme Court — he presented arguments in four of the six patent cases in the 2016 Term — but he also has an extensive appellate practice before the Court of Appeals for the Federal Circuit (“Federal Circuit”), which has exclusive appellate jurisdiction over patent cases. Given his substantial experience in patent appellate litigation, Waxman is a reliable observer of patent law and practice over the years, especially in the Supreme Court.
In his remarks, he suggests that the Supreme Court’s “attention to patents” of late has been marked by an increase in the number of cases that it selects for its docket, by the tendency of such cases to foster uncertainty, by the lack of robust dissent in its unanimous patent cases, and by its disconnection of meaningful context from the Federal Circuit, Congress, or lower courts from its decisions. The result, he claims, is a level of uncertainty particularly poisonous to patent law because of its utilitarian nature, where the entirety of the scheme is premised on investment ex ante. Fearing that this attention will continue “for the foreseeable future,” Waxman proposes that the Court pause its patent agenda and proceed cautiously to avoid unraveling more incentives for innovation.
Waxman leaves it to the reader to conclude whether these times are a blessing or a curse, but his account of the past decade’s “trends and themes” strikes a Chicken Little tone while highlighting a frenetic pace, substantial changes, uncertainty, skepticism, lopsidedness, and devaluation. In this response, I propose a more optimistic view. The problems that Waxman worries over are actually inherent to some of patent law’s values, in good and bad ways, which will keep the times interesting. In exploring some of his themes below, I lean on baseball and popular neuroscience to reframe these conflicting values positively. In doing so, I propose recasting the institutional players in patent law, including the Supreme Court and the Federal Circuit, as cooperative rivals that render the patent system more robust (and, indeed, interesting) for our times.
17 Chi.-Kent J. Intell. Prop. 490 (2017-2018)