by Katherine G. Minarik, Partner, Bartlit Beck Herman Palenchar & Scott, LLP*
With its cert grant in one chapter of the epic Apple v. Samsung patent litigation war, the Supreme Court expanded the spotlight on patent remedies this year. Although Samsung will not be heard until next Term, the grant came not long after the Court heard argument in Halo v. Pulse, a case about the proper standard for awarding enhanced damages, for which a decision is expected soon.
It is not a surprise – or at the very least it was a predictable result (patent law pun intended) – that the Court is paying increasing attention to patent remedies. Scholars have counted up 78 patent cases before the Court from 1952 through the recent grant in Cuozzo v. Lee. The Samsung grant makes 79 patent cases in the last 65 years. And a full 40 percent of those cases have been before the Court since 2006.
While patent law can seem a bit enigmatic to many a non-patent lawyer, the reality is that what the Court is doing in patent law is common practice. The Court sees something not working, believes the Circuit Courts (or here, just the Federal Circuit Court) not fixing it, and steps in. Over the past decade, the Court has seen a lot of things not working in patent law: In 2007, KSR v. Teleflex loosened the standard for assessing the obviousness of a patented invention. In 2014, Nautilus v. Biosig loosened the standard for assessing indefiniteness of a patented invention. Also in 2014, Alice v. CLS Bank loosened the standard for assessing the patentability of the subject matter of a patent.