Patent Law in the Age of the Invisible Supreme Court
![handle is hein.journals/unilllr2001 and id is 399 raw text is: PATENT LAW IN THE AGE OF THE
INVISIBLE SUPREME COURT
Mark D. Janis*
In this article, University of Iowa Law Professor Mark Janis ex-
amines the permanence of the [Supreme] Court's retreat to the pe-
ripheries of patent law after the creation of the Federal Circuit, ex-
ploring what roles the Supreme Court might imagine for itself in
contemporary patent law. Professor Janis first establishes some pa-
rameters for Supreme Court decision making in patent cases by ana-
lyzing two extremes: an aggressive interventionist model and an ex-
treme noninterventionist model. He then proposes an intermediate,
managerial model in which the Court's role centers on an effective al-
location of power among institutions of the patent system. The
managerial model encourages the Court to impose prudential restric-
tions on the scope of its own patent opinions and rejects the paradigm
of ad hoc, substantive error correction as a serious future role for the
Court in patent law.
I. INTRODUCTION
The Supreme Court has rendered itself well nigh invisible in mod-
ern substantive patent law. The Court of Appeals for the Federal Cir-
cuit, created in 1982, has become the de facto supreme court of patents.
In those rare patent cases when the real Supreme Court has materialized,
the Court has left behind a largely uninspiring jurisprudence When
* Professor of Law, University of Iowa College of Law.
Thanks to several Iowa colleagues for helpful commentary and to the participants at the University
of Illinois symposium. Particular thanks to Professors Jay Kesan and Thomas S. Ulen, the organizers of
the symposium. I am also indebted to Professor John Duffy for his insights on the Supreme Court and
its potential to serve as a more important institutional player in the patent system. Bob Holub and Paul
Bennett provided excellent research assistance. Any errors are my own.
1. See Nelson v. Adams USA, Inc., 529 U.S. 460 (2000); Fla. Prepaid Post-Secondary Educ. Expense
Bd. v. College Sav. Bank, 527 U.S. 627 (1999); Dickinson v. Zurko, 527 U.S. 130 (1999); Pfaff v. Wells
Elecs., Inc., 525 U.S. 55 (1998); Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17 (1997);
Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996); Cardinal Chem. Co. v. Morton Int'l, Inc., 508
U.S. 83 (1993); Eli Lilly & Co. v. Medtronic, Inc., 496 U.S. 661 (1990); Christianson v. Colt Indus. Operating
Corp., 486 U.S. 800 (1988); Dennison Mfg. Co. v. Panduit Corp., 475 U.S. 809 (1986).](ViewImageLocal?handle=hein.journals/unilllr2001&div=19&collection=&method=preview&ext=.png&size=3)
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Patent Law in the Age of the Invisible Supreme Court
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