As pointed out by Prof. Dennis Crouch on his famous PatentlyO blog, only four years in, the 2010s have seen more Supreme Court patent cases than any decade since the 1960s. And, by the end of 2015 (half –term), it can be expected that 1960 mark will also be surpassed.

Additionally, the Supreme Court’s intervention is not merely limited to procedural review or constitutional issues. The cases it has recently decided go right into substantial core issues of patent law, such as patent scope and written description, the doctrine of equivalents and prosecution history estoppel, subject matter eligibility, induced infringement, the statutory experimental use defense, the interplay between patent law and competition law etc. - to only mention a few.

This activity is indeed striking. The increasing tendency of the Supreme Court to grant review in patent cases suggests that it is concerned about how good a job the Federal Circuit is doing. But the consolidation of intermediate appellate jurisdiction in a single court presents special challenges for Supreme Court review. This inevitably leads to the following questions:

Why is the Supreme Court so interested in patent law (apparently more that in copyright and trademark law) and what triggers its intervention? Why should we care in Europe?

In my speech I briefly explored a variety of explanations for the Supreme Court’s recent intervention in patent law. As it was pointed out by Prof. Timothy Holbrook at Emory Law School, there is presumably no singular motivation for the Supreme Court’s activity, and it may very well be a combination of some or all of these factors. Nevertheless, exploring these potential rationales offers insight into the workings of the Supreme Court and could aid those seeking certiorari in framing their particular issue to attract the Court’s attention. Most importantly from a European perspective: These rationales also shed some light on the tension and potential conflicts between expert courts developing their own doctrines in specific areas and general courts trying to protect democratic values and common principles in legal systems. Being very much thrilled about the current developments towards a unitary patent system with specialized patent courts I would therefore also like to talk about some implications for the UPC and future opportunities , threats and challenges.