How Successful Are Federal Circuit Cert Petitions in Patent Cases?

Sterne Kessler’s William Milliken, co-chair of the appellate practice, spoke with IAM on the frequency and success of patent law cases reviewed at the U.S. Supreme Court.

In the past month, there have been two writs of certiorari at the U.S. Supreme Court prompting the question of how successful these cases are. Milliken said, “There was a period through the 2000s and early 2010s where the court seemed very interested in patent law, particularly patent eligibility cases,” he continued, “These days, they do not seem to be inclined to review a lot of substantive law issues, whether that is because the current composition of the Supreme Court isn’t interested in patents or whether they think the Federal Circuit is getting it right and so there’s no need to intervene.”

Though the cases reviewed have dwindled, that has not stopped parties from filing petitions, with 43 cases between January and mid-August requesting Supreme Court review, all of which were denied.

“Most people who are involved in high-stakes cases think they have interesting issues,” said Milliken. “There’s not a whole lot to be lost by filing a cert petition and seeing what happens.”

Milliken further explained, “The key to getting cert granted is being able to identify a deep and entrenched circuit split. That is generally not a common feature of patent cases for the obvious reason that the Federal Circuit has exclusive jurisdiction over patent issues.”

“I don’t think the argument is necessarily going to move the needle a lot unless you’ve got a very compelling case and there is actually a circuit split,” Milliken remarked.