The Supreme Court Bar at the Bar of Patents

Paul R. Gugliuzza*

Over the past two decades, a few dozen lawyers have come to dominate practice before the U.S. Supreme Court. By many accounts, these elite lawyers—whose clients are often among the largest corporations in the world—have spurred the Court to hear more cases that businesses care about and to decide those cases in favor of their clients. The Supreme Court’s recent caselaw on antitrust, arbitration, punitive damages, class actions, and more provides copious examples.

Though it is often overlooked in discussions of the emergent Supreme Court bar, patent law is another area in which the Court’s agenda has changed significantly in the past twenty years. After rarely hearing patent cases for several decades, the Court now decides three or more patent cases nearly every Term. This Article presents an empirical analysis linking the Supreme Court’s increasing interest in patent law to the elite bar’s growing involvement in patent litigation. Though correlation does not prove causation, the Article relies on a novel dataset of cert petitions in Federal Circuit patent cases to suggest that the elite bar has, in fact, contributed to the growth of the Supreme Court’s patent docket. Among this Article’s key findings is that, in patent cases, a cert petition filed by an elite lawyer is three times more likely to be granted than a petition filed by a lawyer outside that group. And although elite lawyers account for only 16% of cert petitions filed in patent cases, their petitions account for a remarkable 40% of the petitions granted.

Because patent appeals are centralized in the Federal Circuit, patent law lacks the circuit splits that the law clerks who sift through cert petitions would normally look for in recommending that the Court grant review. But the presence of elite lawyers may not be an ideal proxy for certworthiness. In fact, the increasing participation of those lawyers in patent litigation could help explain why the Court’s recent patent cases, though substantial in number, mainly involve issues of jurisdiction, procedure, and statutory interpretation—not the core areas of patent law where the Court’s input would be most useful.

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© 2020 Paul R. Gugliuzza. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Professor of Law, Boston University School of Law. For comments and helpful discussions, thanks to Jonas Anderson, Bob Bone, Stacey Dogan, John Duffy, John Golden, Tim Holbrook, Mark Lemley, Mike Meurer, Lisa Ouellette, Rachel Rebouch´e, Greg Reilly, and Ted Sichelman, as well as participants at the Law and Society Association Annual Meeting in Toronto, the Junior IP Scholars Association Summer Workshop at Northwestern University Pritzker School of Law, the IP Scholars Conference at UC Berkeley School of Law, the IP, Science, and Technology Workshop at the University of Texas School of Law, and the Midwestern Law and Economics Association Annual Meeting at Villanova University School of Law. Thanks also to Ally Faustin, Kris Hansen, Hillary Leffue, and Allison McSorley for superb research assistance. Finally, special thanks to David Schwartz and Kathy Zeiler for guidance on the quantitative aspects of this Article.