SCOTUS Patent Scorecard Update

On May 22, 2017, the Supreme Court issued TC Heartland LLC v. Kraft Foods Group Brands LLC. Then, on May 30, 2017, the Supreme Court issued Impression Products, Inc. v. Lexmark International, Inc.

Briefly stated, TC Heartland clarifies where a patent suit can be filed and, as such, is patent neutral. Impression Products concludes “that a patentee’s decision to sell a product exhausts all of its patent rights in that item, regardless of any restrictions the patentee purports to impose or the location of the sale[,]” and, as such, is not pro-patent.

Pundits who believe TC Heartland is not pro-patent, or is anti-patent, seemingly are disappointed that a single U.S. district court (Eastern District of Texas) might no longer serve as the trial court equivalent of the U.S. Court of Appeals for the Federal Circuit. Well, easy come, easy go. Indeed, a pronounced concentration of patent cases (read: power) in a single U.S. district court conjures up monarchical concern, regardless of any actual or perceived certainty or efficiency.

In the past 12 years, the Supreme Court has issued 31 patent decisions.

The tally: 18 decisions are not pro-patent; 7 decisions are pro-patent; and 6 decisions are patent neutral.

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