The Supreme Court’s Devaluation of U.S. Patents

In a span of three weeks during the spring of 2017, the U.S. Supreme Court issued three patent decisions, bringing the total number of patent decisions for the 2016-2017 term to six. This means that the October 2016 term ties the previous record of six patent decisions in the October 2014 term. This represents a tremendous increase in the number of patent decisions compared to earlier times, and particularly the early days of the Federal Circuit. For reference, during the first quarter of a century the Federal Circuit was in existence, the Supreme Court heard on average less than one patent case per year. The three most recent decisions, Sandoz, TC Heartland, and Impression Products are typical of recent Supreme Court patent jurisprudence in that they all soundly rejected the Court of Appeals of the Federal Circuit’s interpretation of statute and/or Supreme Court precedent, and all of the decisions resulted in a reduction of patent rights for patent owners. In this regard, they are quite representative of a wave of patent decisions by the Supreme Court over the last decade that challenged no signs of abating. In the aggregate, these decisions have led to a marked accretion of patent owner rights, that has weakened the value of issued patents and/or made it more difficult to obtain patents. This Article reviews these decisions, identifying the specific devaluation and its likely impact on biotechnology