Fiddling with Federal Circuit Precedent: The Commercial and Qualitative Impact of Recent Supreme Court Reversals on the U.S. Patent System
Christopher J. Hamersky
Note

  The full text of this Note may be found here.

30 Fordham Intell. Prop. Media & Ent. L.J. 935 (2020).

Note by Christopher J. Hamersky*

ABSTRACT

[P]

rior to 2006, the Court of Appeals for the Federal Circuit enjoyed a fairly laissez-faire relation with the Supreme Court of the United States, enabling it to develop a patent law jurisprudence that patent practitioners could confidently rely on given that it had remained relatively stable for several decades. However, in 2006, the Supreme Court reviewed eBay v. MercExchange and subsequently began a string of frequent Federal Circuit reversals that have caused significant change to the U.S. patent system. Whereas the Supreme Court rarely took up patent appeals in the Federal Circuit’s early history, it now routinely reviews patent questions each term and often reverses Federal Circuit precedent to fundamentally change the patent law jurisprudence.

This Note endeavors to review several of the most impactful decisions from the last two decades of patent law jurisprudence in order to showcase the extent to which prior patent norms were upended. In juxtaposing these highlighted, fundamental changes in U.S. patent jurisprudence against the different protections and litigation procedures offered in jurisdictions abroad, this Note stresses the importance of immediate congressional action to rectify an apparent decline in the U.S. patent system and notes what concerns to specifically address in order to repair the system as a whole.

* Notes and Articles Editor, Fordham Intellectual Property, Media & Entertainment Law Journal, Volume XXIX; J.D., Fordham University School of Law, 2019; B.A., Boston College, 2016. I would like to wholeheartedly thank Professors Hugh Hansen and John Richards for their guidance and input throughout the researching and writing of this Note, in addition to Elliot Fink for all of his assistance and honest critiques. I would also like to extend special thanks to my friends and family, particularly Richard, Carol, Kerri, and Billy, without whom I would not be where I am today, as well as to Captain L. Brennan, PGS, and everyone in Trenton for affording me ample advice and invaluable opportunities to learn.