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The question many in the patent field are asking is how the recent passing of Justice Antonin Scalia may change the patent landscape. The short term answer is probably not a lot. The long term answer depends on who is eventually appointed to the Court.

During his thirty year tenure on the court since his appointment by Ronald Reagan, Scalia was known as an originalist and textualist. His opinions earned him varying degrees of praise and notoriety. Often seen as pro-business and a protector of property rights, Scalia admitted to not completely understanding patent law and, surprisingly, often turned to the liberal Justice Ginsberg for guidance on patent matters.

While President Obama has nominated Merrick Garland (a move that patent owners should be skeptical of), it is unlikely that the Senate will confirm before the presidential election. This means that at least three patent cases (discussed below) will be decided by a Court that is ideologically split down the middle (4 conservatives and 4 liberals). While for many matters this would lead to 4-4 splits (and the decisions in the lower courts being affirmed), patent law is traditionally not an area decided along ideological lines (as indicated above Scalia often turned to Ginsberg for advice on patent matters).


It’s hopeful the Court (and Scalia’s replacement) will eventually see Scalia’s wisdom and help clarify the now uncertain patent landscape.

The three patent cases the Supreme Court has agreed to hear the session include Halo Electronics v. Pulse Electronics, Stryker Corporation v. Zimmer Inc, and Cuozzo Speed Technologies v. Michael K. Lee. The rulings on these cases will have impacts on damages and claim construction evaluation in inter partes reviews (IPR). Most legal scholars do not see the outcome of these cases changing with the passing of Scalia. However, in the unlikely event that Halo, Stryker, and/or Cuozzo ends in a 4-4 tie in, the Federal Circuit decision(s) will stand.

Despite openly admitting patent law was not his strong suit (Scalia said the hardest case he ever decided was a patent case) his legacy in patent law is likely to outlive his own expectations. Scalia was the first justice to use the term “patent troll” in an opinion. He also offered biting criticism of the tests that courts have adopted to try and make sense out of a highly abstract field (Scalia once referred to the court’s proposed test for non-obviousness as “gobbledygook”). Scalia also openly criticized the need to go beyond Bilski in Alice saying “Why isn’t doing it through a computer not enough? I mean, was the cotton gin not an invention because it just means you’re doing through a machine what people used to do by hand?”

It’s hopeful the Court (and Scalia’s replacement) will eventually see Scalia’s wisdom and help clarify the now uncertain patent landscape. Patent owners everywhere should hope for another justice who shares Scalia’s respect for property rights and recognizes that intellectual property should be provided that same respect.

Photo credit: Steve Petteway, photographer, Supreme Court of the United States – Collection of the Supreme Court of the United States (Public Domain)