Replies to post #157427 on Biotech Values

[pollyvonwog]

Not taking the case seems absolutely ridiculous. As others have mentioned, these patent disputes will continue with the makeup of the panel at the CAFC being the concluding factor on who comes out on top. It is not inconceivable that the same thing happens with M-Copax, except MNTA gets a different panel and wins.

[mouton29]

<<If I remember correctly one of the papers I linked to was about the fact that the USSC hears a meaningfully higher fraction of appeals coming regarding patents.>>

The court receives 1000's of pro se appeals from prisoners, these are virtually never accepted. At a minimum, that skews the percentages.

There is a 2007 Michigan Law Review note discussing some of the factors in Supreme Court review of patent cases, here is an excerpt from the full article available at http://www.michiganlawreview.org/articles/the-supreme-court-and-the-federal-circuit-visitation-and-custody-of-patent-law. :

The small set of patent cases in which the Supreme Court has granted certiorari reveal several different signals that have drawn the Court's attention to cases meriting review.

First, the Supreme Court has granted certiorari to review cases in which the Federal Circuit's patent jurisprudence is at odds with the treatment of similar issues in other fields of law. For example, in Dickinson v. Zurko, the Court considered whether it was appropriate for the Federal Circuit to accord less deference to factual findings of the PTO than courts accord to the findings of other agencies under the Administrative Procedure Act. And, in eBay Inc. v. MercExchange LLC, the Court considered whether the standard for injunctive relief should be less stringent in patent cases than in other fields.

Second, the Supreme Court has granted certiorari when it believes the Federal Circuit has departed from the Supreme Court's own patent law decisions. For example, the Court has granted certiorari twice in the last eight years in cases involving patent-eligible subject matter-an issue that the Court had repeatedly addressed in a series of decisions prior to the creation of the Federal Circuit. These grants occurred in J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred International, Inc. and in Laboratory Corp. of America Holdings v. Metabolite Laboratories, Inc. (although the Court later dismissed certiorari in Laboratory Corp. as improvidently granted). Unfortunately, the Supreme Court's own patent jurisprudence is mostly quite old, limiting its value as a guide to the most pressing unresolved issues today.

Third, the Supreme Court has intervened to resolve internal divisions within the Federal Circuit. Thus, in Warner-Jenkinson Co. v. Hilton Davis Chemical Co. and Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki, Co., the Supreme Court granted certiorari to review en banc decisions revealing sharp disagreements among the judges of the Federal Circuit as to the rules for determining patent infringement liability under the doctrine of equivalents and the doctrine of prosecution history estoppel, respectively.

Fourth, in recent years the Supreme Court has increasingly sought and sometimes heeded the views of the Solicitor General before granting certiorari in patent cases. The Solicitor General's views, in turn, are informed by the views and experience of the PTO. As an expert agency that administers the patent laws under the appellate oversight of the Federal Circuit, the PTO has a unique perspective on the patent jurisprudence of that court. The Supreme Court has sometimes ignored the recommendation of the Solicitor General to deny certiorari, as it did in J.E.M. and Laboratory Corp. But whenever in recent years the Solicitor General has urged the Supreme Court to grant certiorari in a patent case, it has done so, and the Court has ultimately resolved the case in accordance with the Solicitor General's advice. Recent examples include Merck KGaA v. Integra Life Sciences I, Ltd., KSR International Co. v. Teleflex, Inc., and Microsoft Corp. v. AT&T Corp.