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The uncertain state of patent law 10 years into the Roberts court

By Paul Michel and Matthew J Dowd

The US Supreme Court has had a major impact on US patent law during the last decade. From injunctive relief to fee shifting and patent-eligible subject matter, its opinions have reshaped the entire market

Since John Roberts was appointed chief justice over 10 years ago, the US Supreme Court has fundamentally depressed the economic value of patents and the investment incentives created by patent protection. Beginning with eBay, Inc v MercExchange, LLC, the court has repeatedly rejected the Court of Appeals for the Federal Circuit’s attempts to increase certainty in patent law. It has now reached the point where one must question whether the Supreme Court’s decisions and current thinking are consistent with the constitutional mandate that patent law should further the progress of “science and useful arts”.

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