The weekend's news about Justice Antonin Scalia's passing was a shocker. Justice Scalia always appeared so vigorous that he seemed much younger than his 79 years. His high level of legal scholarship was always on display. Justice Scalia was nothing if not a formidable jurist.
Although many tributes to the man and to the jurist abound, the politics surrounding his successor are heightened. Conservatives and liberals have much to fret about given Justice Scalia's leadership of the court's conservatives and the importance of key decisions that impact a wide swath of the American public. But from the patent law perspective, there is little to be concerned about because patent law is one of the few legal areas where the court has been in sync. Indeed, over the last five years, 85% of the court's patent law cases were unanimous decisions. And Justice Scalia authored no majority opinion, concurrence, or dissent in any patent case in the last five years. His lone written contribution to the court's patent cases of the past five years was not agreeing to three footnotes in Octane Fitness, LLC. v. Icon Health & Fitness, Inc.
A chart of the court's patent cases from the last five years is shown below:
|Case Name||Legal Issue||Year Decided||Decision||Comments|
|Teva Pharmceuticals USA, Inc. et al. v. Sandoz, Inc. et al.
|Standard of review re claim construction||2015||7-2||1 dissent|
|Kimble et al. v. Marvel Entertainment, LLC
|Stare decisis, licensing of expired patents||2015||7-2||1 dissent|
|Octane Fitness, LLC v. Icon Health & Fitness, Inc.
|Exceptional case for fee shifting||2014||9-0||Scalia, J. joined the court's opinion except for footnotes 1-3|
|Highmark Inc. v. Allcare Health Management System, Inc.
|Standard of review for exceptional fee cases||2014||9-0|
|Medtronic Inc. v. Mirowski Family Ventures
|Subject matter jurisdiction, burden of proof re infringement of a licensed patent||2014||9-0|
|Nautilus, Inc. v. Biosig Instruments, Inc.
|Limelight Networks, Inc. v. Akamai Technologies, Inc. et al.
|Alice Corporation Pty. Ltd. v. CLS Bank International et al.
|Patent eligibility; abstract ideas||2014||9-0||1 concurring opinion|
|Gunn et al. v. Minton
|Subject matter jurisdiction in a patent malpractice case||2013||9-0|
|Bowman v. Monsanto Co. et al.
|Mayo Collaborative Services v. Prometheus Laboratories, Inc.
|Patent eligibility; laws of nature||2012||9-0|
|Kappos v. Hyatt
|Appeals from the PTO; evidence and standard of review||2012||9-0||1 concurring opinion|
|Microsoft Corp. v. i4i Limited Partnership
|Presumption of validity, standard of proof to invalidate a patent||2011||8-0||2 concurring opinions; Justice Roberts took no part in consideration or the decision|
This term, the court has granted review to the following patent cases:
- Halo Electronics, Inc. v. Pulse Electronics, Inc. (enhanced damages)
- Stryker Corporation v. Zimmer, Inc. (enhanced damages)
- Cuozzo Speed Technologies, LLC v. Lee (standard of review for claim interpretation in IPRs)
And other patent case cert petitions are still pending before the court.
But the loss of Justice Scalia is unlikely to be felt, or felt much, in patent cases going forward—even if the loss will be felt (perhaps greatly felt) in many other legal cases, including even in other intellectual property cases.