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Supreme Court Update

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The Supreme Court’s interest in patent cases seems to have spiked recently, and there are many articles devoted to unraveling where, exactly, the Supreme Court’s interest lies.  Our interest for today lies somewhere different given the petition for certiorari that we have pending on the issue of inequitable conduct.  Mainly, we are interested in how the Supreme Court’s request for input from the Solicitor General impacts the overall odds of having certiorari granted.  In patent cases, the Supreme Court is increasingly seeking input and guidance from the Solicitor General on the difficult question of whether certiorari should be granted.  For example, the Supreme Court has sought input from the Solicitor General in Bowman v MonsantoMicrosoft Corp. v. AT&TMerck v. Integra Life Sciences, and KSR v. Teleflex.  Interestingly, a request for input from the Solicitor General significantly changes the likelihood of having cert. granted–making a grant 46 times more likely, to be specific.  Stated differently, your odds of having cert. granted increase from almost nonexistent to  about 42%!  Even more interesting, the Supreme Court grants certiorari in more cases than the Solicitor General recommends, which means that a “no” from the Solicitor General does not automatically end your chances of having cert. granted.  Any way you look at it, a request for input from the Solicitor General is good news for a litigant hoping to have cert. granted.  For a more in-depth look at these numbers, we suggest taking a look at the great analysis put together by David Thompson and Melanie Wachtell on this issue. (An Empirical Analysis of Supreme Court Certiorari Petition Procedures: The Call for Response and the Call for the View of the Solicitor General, 16 Geo. Mason. L. Rev. 237, 242 (2008-09)).

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