The Supreme Court and the Future of Patent Reform

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As the patent system grows in importance to the U.S. economy, so too does the controversy surrounding the law, its institutional players, and even its underlying economic assumptions. The Supreme Court’s recent return to substantive patent law in last term’s KSR v. Teleflex opinion offers an opportunity to take stock of the recent past and look forward. In this article, I sketch the outlines of a series of major shifts that have rocked the patent system in recent years, including a growth in patent-related activity, and the emergence of the technology industry (on the West Coast) as a major player in the political economy of the patent system. It is these “plate tectonics,” I suggest, that both explain the recent interest in the patent system as well as suggest important features of its future. My argument is that, as the paths for change narrow, meaningful patent reform will increasingly fall to the courts. This case-by-case, litigation-driven change has, I think, important consequences. And, indeed, the Supreme Court’s recent KSR decision is a case study that reveals critical limitations in this approach. This, in turn, suggests that a re-evaluation of patent reform options is required, and that, in particular, the understudied role of the U.S. Patent and Trademark Office (PTO) should be revisited.


Patent law, technology & innovation, intellectual property, courts, science & technology; Silicon Valley, Supreme Court of the United States, patent reform, political economy, public policy

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Federal Lawyer

Publication Citation

55 Fed. Law. 35 (Feb. 2008).

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