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Does the Supreme Court still matter?

By Lawrence B. Ebert, Esq.

When Tim Lee took on the Federal Circuit in a recent post on TechDirt, it was apparent he had not read Judge Plager's piece in 101 Nw. U.L. Rev. 1735 (2007) titled RETHINKING PATENT LAW'S UNIFORMITY PRINCIPLE: A RESPONSE TO NARD AND DUFFY.

Another judge-written article of interest is Judge Dyk's article A REVIEW OF RECENT DECISIONS OF THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT: FOREWORD: DOES THE SUPREME COURT STILL MATTER?
which includes the text:

Unlike the situation with many federal administrative agencies, the United States Patent and Trademark Office ("PTO") has no substantive rulemaking authority, at least under our decisions, and accordingly we have afforded no Chevron deference to its interpretation of the substantive provisions of the patent statute. n20 Moreover, Congress has not so far created a significant role for the PTO in the infringement litigation process, either with respect to issues of claim construction, validity, or enforceability, though the reexamination process is perhaps becoming increasingly significant as an adjunct to litigation. This is not to suggest that the PTO does not play a critical role in the patent system. However, the courts, rather than the PTO, have the responsibility under the statute with developing the substantive law of patents - a kind of common law of patents - much as in the area of antitrust. n21 In this environment, Supreme Court review is even more important than in areas where the statutes are more detailed or Chevron applies and the courts have a less central role.

See also

http://ipbiz.blogspot.com/2008/06/timothy-lee-blasts-federal-circuit.html

http://ipbiz.blogspot.com/2008/02/judge-plager-takes-on-nard-and-duffy.html

Full post as published by IPBiz on June 22, 2008 (boomark / email).