The Supreme Court, the Federal Circuit, and Patent Law


The Michigan Law Review’s companion journal First Impressions today published an online symposium on the Supreme Court, the Federal Circuit, and Patent Law. The symposium takes place against a backdrop of three recent Supreme Court decisions affecting patent law—KSR v. Teleflex, Microsoft v. AT&T, and eBay v. MercExchange.

A diverse group of authors considers whether these cases together represent, as some commentators have suggested, a recent upheaval in patent law and a modified relationship between the Federal Circuit and the Supreme Court. The extended post contains a more complete description of the symposium as well as links to the essays.

University of Michigan Law Professor Rebecca S. Eisenberg contends that the Federal Circuit’s control over patent law remains little diminished by the Court’s recent foray into the patent jurisprudence and argues that the most significant impact of KSR may be to embolden the U.S. Patent and Trademark Office to reject more patent applications for obviousness without fear of reversal.

George Washington University Law Professor John F. Duffy argues that the Supreme Court’s reform of patent law substance and procedure was predictable and that KSR’s importance derives from the fact that it highlights many separate trends that are reshaping the patent system.

Patent litigator Harold C. Wegner believes that the Microsoft case revealed the balkanized nature of the Federal Circuit and that KSR, through which the Supreme Court created a unified message, will therefore be crucial to the Federal Circuit under future Chief Judge Randal Rader.

Senior Vice President and General Counsel for Eli Lilly & Co. Robert A. Armitage proposes that Congress adopt the National Academy of Sciences’ recommendations for reforming patent law rather than pursuing “anti-troll” objectives and simultaneously defends the judiciary’s successful track record of responding to common criticisms of anti-trolls without legislative intervention.

Patent litigators Stephen G. Kunin and Andrew K. Beverina explain KSR’s effect on patent law and outline lessons that it suggests for patent prosecution and litigation.

To download a PDF of the entire symposium, please click here.

Additional First Impressions content is available at

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