THE SUPREME COURT BAR AT THE BAR OF PATENTS.

• Author: Gugliuzza, Paul R.

Over the past two decades, a few dozen lawyers have come to dominate practice before the U.S. Supreme Court. By many accounts, these elite lawyers--whose clients are often among the largest corporations in the world--have spurred the Court to hear more cases that businesses care about and to decide those cases in favor of their clients. The Supreme Court's recent caselaw on antitrust, arbitration, punitive damages, class actions, and more provides copious examples.

Though it is often overlooked in discussions of the emergent Supreme Court bar, patent law is another area in which the Court's agenda has changed significantly in the past twenty years. After rarely hearing patent cases for several decades, the Court now decides three or more patent cases nearly every Term. This Article presents an empirical analysis linking the Supreme Court's increasing interest in patent law to the elite bar's growing involvement in patent litigation. Though correlation does not prove causation, the Article relies on a novel dataset of cert petitions in Federal Circuit patent cases to suggest that the elite bar has, in fact, contributed to the growth of the Supreme Court's patent docket. Among this Article's key findings is that, in patent cases, a cert petition filed by an elite lawyer is three times more likely to be granted than a petition filed by a lawyer outside that group. And although elite lawyers account for only 16% of cert petitions filed in patent cases, their petitions account for a remarkable 40% of the petitions granted.

Because patent appeals are centralized in the Federal Circuit, patent law lacks the circuit splits that the law clerks who sift through cert petitions would normally look for in recommending that the Court grant review. But the presence of elite lawyers may not be an ideal proxy for certworthiness. In fact, the increasing participation of those lawyers in patent litigation could help explain why the Court's recent patent cases, though substantial in number, mainly involve issues of jurisdiction, procedure, and statutory interpretation--not the core areas of patent law where the Court's input would be most useful.

INTRODUCTION

On May 28, 2002, the Supreme Court decided a case with the inimitable caption of Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co. (1) As the Court explained, its opinion "address[ed] once again the relation between two patent law concepts, the doctrine of equivalents and the rule of prosecution history estoppel" (2)--concepts the Court had tackled only five Terms earlier in Warner-Jenkinson Co. v. Hilton Davis Chemical Co. (3) Later in 2002, in an article titled The Festo Decision and the Return of the Supreme Court to the Bar of Patents, John Duffy contended that, although the Supreme Court had decided very few patent cases during the second half of the twentieth century, decisions such as Festo and Warner-Jenkinson reflected a Court that was "increasingly comfortable in reviewing patent decisions and increasingly interested in directing the development of law in the field." (4)

Since Duffy wrote that article, the Supreme Court's engagement with patent law has grown tremendously. After deciding less than one patent case per Term from 1982 (the year the Federal Circuit assumed exclusive jurisdiction over patent appeals) (5) through 2004, the Court has since decided more than forty patent cases--an average of over three per Term. (6)

Scholars have proposed several explanations for the modern Supreme Court's close attention to patent law, and most of them likely contain a grain of truth. One common sentiment is that the Federal Circuit, the semispecialized court created to achieve uniformity in patent law, has failed, undone by the tunnel vision and interest group capture thought to be endemic to specialized tribunals. (7) In a similar vein, the Supreme Court's recent patent decisions read like a campaign to eliminate what is often referred to as "patent exceptionalism" (8)--rulings (usually by the Federal Circuit) that exempt patent law from transsubstantive principles of jurisdiction, procedure, and remedies that govern in other areas of federal litigation. (9) More benignly, the Supreme Court, in deciding an increasing number of patent cases, might be playing the role of "percolator" of patent doctrine--a necessary function in a field where, because of the Federal Circuit's exclusive jurisdiction, intercircuit dialogue about the content of the law does not exist. (10) More simply, the Court's large docket of patent cases could reflect the notion that, in a digitized and networked world, intellectual property rights are of greater social and economic importance than they were a few decades ago. (11) Indeed, the amount of patent litigation in the federal courts has increased in the past twenty years and, though the magnitude of that increase is a matter of dispute, (12) more patent litigation offers the Supreme Court more patent cases to choose from and raises more issues of patent law to be resolved. Not only are the lower courts creating more patent law, Congress is, too. The America Invents Act (AIA), passed in 2011, (13) has provided the impetus for several recent Supreme Court decisions in patent cases, (14) and disputes involving the AIA will likely populate the Court's docket for the foreseeable future. (15)

In this Article, I seek to introduce an additional consideration into the ongoing endeavor to understand the Supreme Court's newfound interest in patent law: the changing characteristics of the lawyers litigating patent cases on appeal. The past few decades have seen the emergence of a small, elite group of lawyers specializing not in any substantive area of law but in litigation at the Supreme Court. (16) The academic literature on this new Supreme Court bar suggests that the Court is highly sympathetic to the arguments pressed by those elite lawyers, who often represent the world's largest corporations in matters of significant interest to the business community. (17) This Article extends those insights to the field of patent law, presenting the results of a novel empirical study showing that the elite Supreme Court bar has, indeed, arrived at the bar of patents.

As recently as a decade ago, elite Supreme Court advocates--which I generally define as lawyers who have presented oral argument in five or more Supreme Court cases in the preceding ten years (18)--filed barely 10% of cert petitions in patent cases arising out of the Federal Circuit. Since 2010, however, that percentage has more than doubled: over the seven Terms from 2010 through 2016, a small group of lawyers--no more than thirty strong and headed by well-known generalist appellate litigators such as Carter Phillips, Paul Clement, Seth Waxman, and Tom Goldstein--served as counsel of record on nearly a quarter of cert petitions filed in Federal Circuit patent cases.

This correlation between the increased presence of elite advocates in Supreme Court patent litigation and the Court's growing docket of patent cases of course does not prove causation. The data I have gathered, however, suggests that elite lawyers have helped shape the Court's agenda at the behest of their often well-heeled clients. Specifically, I find that, in patent cases, a cert petition filed by an elite advocate is three times more likely to be granted than a petition filed by a lawyer outside that group. Moreover, although elite lawyers accounted for only 16% of cert petitions filed in patent cases from 2002 through 2016, they accounted for 40% of the petitions granted review. Both of these findings are statistically significant at the 1% level. In short, though many different factors have surely influenced the Supreme Court to take a greater interest in patent law, the presence of elite advocates seeking certiorari deserves, at minimum, a spot on the list.

The remainder of this Article proceeds as follows. Part I describes the datasets I built for this project, including a novel collection of every cert petition filed in a Federal Circuit patent case from 2002 through 2016. Drawing on those datasets, Part II provides original empirical evidence illustrating that, over the past few decades, the Supreme Court's interest in patent law has increased not only in terms of the raw number of cases decided but, more importantly, in a relative sense: cert petitions in patent cases, my data indicates, are two to three times more likely to be granted today than they were a decade ago. And cert petitions in patent cases are now nearly twice as likely to be granted as the average petition, unlike in the recent past, when cert petitions in patent cases were less likely to be granted than the average petition. Part III then presents evidence linking the elite Supreme Court bar's involvement in patent litigation to the Court's growing docket of patent cases. It also shows how cases involving elite lawyers are more likely to have other characteristics widely acknowledged to make a cert grant more likely, such as an order from the Court calling for the views of the Solicitor General, a large number of cert-stage amicus briefs, or both. Part IV concludes this Article by discussing some limitations of the data that is currently available and sketching a roadmap for future research to better understand how the elite bar shapes both the Supreme Court's agenda in patent cases and the substance of patent law.

1. DATASETS, DEFINITIONS, AND METHODOLOGY

   This Part describes the four novel datasets I built to prepare this Article. It begins by summarizing the data I used to identify the lawyers who qualify as members of the elite Supreme Court bar and by explaining the definition of "elite" that I chose to employ. It then describes a unique dataset I constructed containing all cert petitions in Federal Circuit patent cases over the past fifteen years, as well as two datasets of amicus briefs and calls for the view of the Solicitor General (SG)...