The Supreme Court and Patent Reform

The Supreme Court has systematically evaluated a range of patent law issues over the last dozen years—from the use of injunctions (in the eBay case) to whether venue is proper for patent litigation (in the TC Heartland case). During this time period, Congress weighed in on patent reform but focused more on the structure of the U.S. Patent and Trademark Office and its processes than substantive patent law.

For commentators and practitioners, this path of patent reform raises both substantive and institutional questions. In this conference, we will explore both sets of questions, evaluating whether the Supreme Court has effectively resolved patent law issues and whether the Court has the tools to modify patent law on an ongoing basis. Are there areas in which the nation’s highest court is better situated than others to modify patent law? Is the cost of a common law approach in some areas, such as the issue of patentable subject matter, too great to bear on the system (given the prolonged state of uncertainty inhering in judicial change)? By contrast, is Congress able to make contested decisions about patent law—that is, when the range of relevant stakeholders are not in consensus?

We will explore these questions in an engaged, interactive manner. After our keynote speaker and through breakout sessions, we will view this set of questions through different lenses: the impact of judicial change on patent litigation, the impact of judicial change in terms of driving the optimal patent policy, and the impact of judicial change in terms of prosecution and the impact on practitioners. We will then bring the conversation together with an integrated conversation that seeks to leverage the teachings of the keynote speaker and the insights of the breakout sessions.