RPT-U.S. Supreme Court and top patent court rarely see eye to eye


(Repeats with no change in content)
    By Andrew ChungWASHINGTON, June 19 (Reuters) - The U.S. Supreme Court's
unanimous backing on Monday of a ruling by the country's top
patent court was a rare instance of agreement with a body whose
decisions in that specialized area it regularly overturns.
    Tellingly, Monday's decision related to trademarks, not
patents. Since its term began last October, the Supreme Court
has thrown out all six patent-related decisions by the U.S.
Court of Appeals for the Federal Circuit, which was set up to
handle such cases.
    Since 2014, the high court has upheld the patent court in
only two of 16 patent cases, a Reuters review showed.
    The lack of agreement between the high court and the patent
court reflects a basic conflict at the top of the U.S. legal
system over intellectual property rights, which are critical to
many industries.
    The high court's pattern on patent law is part of a wider
trend, under Chief Justice John Roberts, of the court siding
with business in legal disputes that come before it.
    Business interests have won a string of victories in the
current term, which is scheduled to end next week.
    Through its repeated reversals of the patent court, the
Supreme Court is making it harder to sue companies using
patents. That helps major technology firms such as Google
<GOOGL.O>, Apple <AAPL.O> and Samsung <005930.KS>, all frequent
targets of patent infringement lawsuits by "patent trolls."
    Other industries, including drug and medical diagnostics
companies, have warned against weaker patent rights.
    "The patent system has been weakened, and as far as I'm
concerned the Supreme Court is unaware of that," said Paul
Michel, who retired as Federal Circuit chief judge in 2010.
    Michel said the high court's decisions had created huge
uncertainty for companies and investors over patent rights and
could affect research and development and innovation.
    Reached by Reuters, a representative for the Federal Circuit
declined to comment.
    The Supreme Court's patent cases this term have been
significant, including one involving Apple and Samsung
<005930.KS> over smartphones. In that case, the justices said
the Federal Circuit misinterpreted the law on design patents.
    In another major case, the Supreme Court repudiated a
27-year-old Federal Circuit precedent and tightened where patent
lawsuits may be filed, a blow to the "trolls," or entities that
generate revenue by suing over patents.
    "It's pretty safe to say that it's one of the most impactful
decisions of the term," said Allyson Ho, a business lawyer, at a
U.S. Chamber of Commerce event on Friday.
    In an exception that perhaps proves the rule, the high court
on Monday upheld the Federal Circuit's decision to strike down a
law that prevents disparaging names from being trademarked.
[L1N1JG0K4] The Federal Circuit also handles some trademark

    The justices have sometimes adopted a condescending tone
toward the Federal Circuit's patent rulings.
    During arguments in a 2014 case, Roberts suggested the
Federal Circuit was failing at streamlining patent law, one of
the reasons for its creation in 1982.
    Supreme Court Justice Samuel Alito wrote in an opinion that
same year that the Federal Circuit "fundamentally misunderstands
what it means to infringe" certain patents.
    When the patent court was founded, the judges "saw their
mission as making patents stronger, and the Supreme Court
thought it went too far and started to reel them in," said
Rochelle Dreyfuss, a professor of law at New York University who
has studied the court. "Now the question is whether the pendulum
has swung too far in the other direction."
    She said the patent court was doing a better job explaining
its rulings. It recently seated several new judges, and Sharon
Prost, viewed as less pro-patent than her predecessor, became
chief judge in 2014.
    Duke University law professor Arti Rai said the high court
seemed to disapprove of treating patent law differently from
other areas of law.
    The situation could spark further debate over the future
trajectory of the specialist court, Rai said. For several years,
attorneys, judges and professors have sparred over whether the
court should retain exclusive control over patent cases.
    Some observers note that other appeals courts also go
through periods of high reversal rates.
    Carter Phillips, who frequently argues patent cases, said
that since the Federal Circuit was the sole appeals court to
decide patent issues, the Supreme Court was more likely to
review only those rulings it thinks are wrong.

FACTBOX: U.S. Supreme Court hands wins to business
 (Additional reporting by Lawrence Hurley; Editing by Kevin
Drawbaugh and Peter Cooney)
 ((andrew.chung@thomsonreuters.com; 646.223.8022; 646.407.9441


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