CERTIORARI, UNIVERSALITY, AND A PATENT PUZZLE.

• Author: Narechania, Tejas N.

The most important determinant of a case's chances for Supreme Court review is a circuit split: If two courts of appeals have decided the same issue differently, review is substantially more likely. But practically every appeal in a patent case makes its way to a single court--the Court of Appeals for the Federal Circuit. How, then, does the Supreme Court decide whether to grant certiorari in a patent case?

The petitions for certiorari in the Court's patent docket suggest an answer: The Supreme Court looks for splits anyway. These splits, however, are of a different sort. Rather than consider whether two courts of appeals have decided the same issue differently, the Court looks to whether two fields of law conflict over the application of the same transsubstantive doctrine. Such "field splits" are unusual candidates for Supreme Court attention. After all, the Court's interest in circuit splits is motivated by a desire for geographic uniformity in federal law. But field splits, unlike circuit splits, do not give rise to forum shopping concerns, do not undermine the predictability of the law, nor otherwise implicate the legal values that counsel in favor of uniformity. Instead, the Supreme Court's attention to field splits may suggest that legal universality--consistency across substantive fields of law--is an important (but unstated) priority in certiorari decisionmaking.

The exercise of this universality interest through certiorari decisions in patent cases has several consequences for the Supreme Court's agenda. The Court must better explain why field splits merit review, and we must better understand how to distinguish those field splits that implicate the Court's universality-related concerns from those that do not.

TABLE OF CONTENTS INTRODUCTION I. AN INTRODUCTORY EXAMPLE: SAMSUNG V. APPLE II. CERTIORARI'S PATENT PUZZLE A. Certiorari and Circuit Splits B. Uniformity and the Patent Puzzle III. FIELD SPLITS A. Splits Across Related Fields 1. Laches 2. Declaratory Judgments B. Splits Across Unrelated Fields 1. Willfulness 2. Damages' Causation Principle C. Outliers 1. The Standard of Appellate Review 2. The Presumption Against Extraterritoriality IV. FIELD SPLITS AND THE SUPREME COURT'S AGENDA A. Field Splits' Certiorari Mismatch B. A Process Defect Hypothesis C. The Universality Hypothesis 1. Patent Exceptionalism 2. Antiexceptionalism Across Fields 3. New Priorities for a New Court V. UNIVERSALITY AND CERTIORARI A. Assessing the Court's Certiorari Decisions 1. Outlying Procedural Doctrines 2. Common Concerns Across Related Fields 3. Variation Among Unrelated Fields B. Assessing the Court's Certiorari Standard CONCLUSION APPENDIX INTRODUCTION

In its 2016 Term, the Supreme Court dedicated nearly ten percent of its docket to patent cases. (1) The Court's decision to grant review in each of these cases--as well as almost every other patent case on its docket since 1982--presents a puzzle. This is because the most important determinant of a case's chance of getting on the Supreme Court's docket is a circuit split: When two appellate courts have decided the same issue in conflicting ways, the chances of Supreme Court review jump significantly. (2) But practically every appeal in a patent case makes its way to the United States Court of Appeals for the Federal Circuit. (3) This is by design: In 1982, Congress reformed the structure of patent appeals to provide uniform and expert decisionmaking in patent litigation. (4) This unusual appellate structure complicates the Supreme Court's process for setting its agenda. Because the Federal Circuit is the sole arbiter of patent appeals, there is no possibility of a circuit split.

How, then, does the Supreme Court decide whether to grant certiorari to review a patent case? Despite the apparent importance of the Supreme Court's docket management systems, (5) as well as the recent rapid rise in patent cases on the Supreme Court's docket, (6) the Court's agenda-setting process for patent cases has received only occasional attention. (7)

The Supreme Court's patent-related certiorari decisions seem still to be strongly influenced by the existence of a split. These splits, however, are of a different sort. Rather than consider whether two courts of appeals have decided the same issue differently, the Supreme Court appears to consider, at least in part, whether two fields of law apply the same transsubstantive doctrine differently. If the Supreme Court perceives patent law and copyright law to apply different standards for, say, the defense of laches, then the Court seems more likely to take the case. Other scholars have observed other variables that may portend the Supreme Court's interest in granting certiorari to review a patent case. John Duffy, for example, has examined the solicitor general's influence over the Supreme Court's certiorari decisions in patent cases. (8) Timothy Holbrook has likewise described a range of patent-specific and patent-agnostic explanations for the Court's interest in patent law. (9) My study of each petition for certiorari in the Supreme Court's patent docket from its 1982 Term through its 2016 Term builds from (and expands upon) this existing work. The new cue for certiorari that I have identified in this Article--the field split--is a significant, complementary explanation for the Court's behavior in patent cases. (10)

The Supreme Court's interest in resolving such field splits--conflicts between substantive applications of (potentially) transsubstantive doctrines--merits further scrutiny. After all, the Court's attention to circuit splits is usually justified by its preference for geographic uniformity in federal law. But the usual uniformity-related rationales for reviewing circuit splits are mismatched to field splits. The legitimacy of the federal law may be at stake when the meaning of statutes varies state-by-state, (11) but such stakes are not obvious when willfulness means something different in patent law than it does under the Fair Credit Reporting Act. (12) Field splits likewise do not give rise to forum shopping concerns, nor do they impose any special burden on multistate actors. (13)

Why, then, does the Court bother to take these cases--especially when space on the docket is at a premium? (14) The answer must lie outside the usual explanations for the Court's certiorari decisions: Neither a general regard for uniformity nor these cases' substantive importance to core patent doctrine explains the Court's interest. (15) One possibility is that a process defect--something about the way the Court decides which cases to hear--leads it to err when making certiorari decisions in patent cases. That possibility, though potentially intriguing, quickly proves unpersuasive. (16)

The better hypothesis is that the Supreme Court values legal universality--general consistency across substantive fields of law--in addition to geographic uniformity. Three trails of evidence lead to this conclusion. First, this hypothesis comports with the Court's general trend for disciplining "patent exceptionalism." (17) Indeed, the Court's apparent interest in universality expands this trend's ambit: Where other scholars have identified the Court's skepticism for patent exceptionalism in its merits decisions, a certiorari-centered model explains a broader set of the Court's decisions. Second, the universality hypothesis resonates with the Court's decisions beyond its patent docket. Scholars have noted the Supreme Court's concern for exceptionalism across doctrinal areas, including foreign relations, health care, immigration, labor, and tax. (18) Indeed, the Court has taken rules developed in patent law and applied them in other doctrinal contexts. (19) This explanation thus situates the Court's patent decisions within a more general jurisprudential framework. Finally, a universality-centered explanation correlates with changes on the Court that might explain the emergence of new priorities, namely, the appointment of new justices.

To the extent that the Court's apparent practice identifies such an institutional interest in universality, several implications may follow.

First, the Court's willingness to review a field split alone is itself notable. It suggests the sheer strength of that institutional interest. The Court's stringent standard for certiorari is sometimes satisfied by a decision to craft an exceptional legal rule--suggesting that, at least in patent cases, the Court's concern for legal universality is at least as important as other inputs to its certiorari decisionmaking process, including geographic uniformity and the views of the solicitor general. Indeed, the Court has even granted certiorari over the federal government's objections to resolve a field split. (20)

Second, though the Court's decisions always have the effect of imposing a uniform legal rule (a rule that is constant across jurisdictions), the Court does not always impose a universal legal rule (a rule that is constant across fields of law). Rather, the Court will sometimes preserve varying standards for, say, willful conduct. When, then, does the Court prefer universality? A closer examination suggests that the Court's concern peaks where it perceives a possible threat to the judiciary's neutrality and legitimacy. The Court seems to prefer neutral rules that deny judges the ability to favor certain substantive regimes and to thereby make political choices. (21) Hence, the Court's regard for universality is more likely to give way, on the merits, in the face of a doctrine-specific statute or other, preexisting doctrinal variation.

Third, universality plays no obvious part in the Court's certiorari decisions beyond its patent docket. (22) Indeed, the Court's apparent disinterest in reviewing field splits beyond patent law may highlight some important weaknesses in this certiorari standard. Unlike geographic uniformity, the Court's apparent interest in legal universality...