Recent Supreme Court rulings give both patent critics and proponents something to cheer about, but those who dislike patents may sneak away with another victory: spreading the notion that the Supreme Court does not like patents. Not so, says Professor Robert Merges, in an op-ed on Dennis Crouch’s Patently-O site.

Merges replies to a recent communication from Hal Wegner, who may feel that the Supreme Court has taken a dislike towards patents.

…there is much more sunlight today than in the bad old days of the Douglas-Black anti-patent jihad. We have not seen, in any of the Court’s recent opinions, discussion of patents as “monopolies,” along the lines of Justice Douglas’ concurrence in Great Atlantic v. Supermarket Equipment Corp: “Every patent is the grant of a privilege of exacting tolls from the public. The Framers plainly did not want those monopolies freely granted.” Compare this with a statement from the unanimous opinion in one of the “new wave” of Supreme Court patent cases, the Festo case from 2002:

Each time the Court has considered the doctrine [of equivalents], it has acknowledged this uncertainty [over effective claim scope] as the price of ensuring the appropriate incentives for innovation, and it has affirmed the doctrine over dissents that urged a more certain rule.

In my view, it makes no sense to equate Douglas’ fifty year old dictum in a concurrence with this recent statement from a unanimous Court opinion. To reiterate: the recent statement of binding law talks of preserving “incentives for innovation,” and not hunting down spurious monopolies.

Rather than revive an anti-patent outlook from the Court’s 1950s era, Merges sees the Court adopting another stance:

My reading of the evidence – including eBay and its aftermath – is that this is a pro-business Court. I think the Supreme Court has created, overall, a very moderate body of patent law in recent years. It has absolutely not shown itself to be systematically “anti-patent.” What it has done is to try to keep order and balance in a fast-paced field, weighing the interests of various branches of industry and various users of the patent system. This is, by all assessments, a pro-business Court. It would be shocking if the Court had deviated from this baseline commitment in one important branch of business cases, those involving patents. In my view, it has not.

Further,

The real target of the Supreme Court’s caselaw seems to be, not the patent system generally, but the jurisprudence of the Federal Circuit. It is crucial to keep this in mind: whatever one thinks of the Federal Circuit, or of how much its caselaw needs “correcting,” targeting that Circuit is not the same as targeting patents or patent law generally. This is a vital distinction between the “bad old days” of the Douglas/Black era and today…the Court looks at patent cases from a centrist, inclusive, business-oriented perspective, which is a far cry from saying they are anti-patent. Criticism of individual patents, as in the KSR oral argument, or the dissent from the dismissal of certiorari in Metabolite does not in my mind reveal an underlying anti-patent bias. It does reveal a concern with the quality of some individual patents – which is a different concern.

Well said.

I've done several reviews of Merges' work, which can be found in the Patent category on IPcentral.