Certiorari, Universality, and a Patent Puzzle

Tejas N. Narechania*

The most important determinant of a case’s chances for Supreme Court review is a circuit split: If two courts of appeals have decided the same issue differently, review is substantially more likely. But practically every appeal in a patent case makes its way to a single court—the Court of Appeals for the Federal Circuit. How, then, does the Supreme Court decide whether to grant certiorari in a patent case?

The petitions for certiorari in the Court’s patent docket suggest an answer: The Supreme Court looks for splits anyway. These splits, however, are of a different sort. Rather than consider whether two courts of appeals have decided the same issue differently, the Court looks to whether two fields of law conflict over the application of the same transsubstantive doctrine. Such “field splits” are unusual candidates for Supreme Court attention. After all, the Court’s interest in circuit splits is motivated by a desire for geographic uniformity in federal law. But field splits, unlike circuit splits, do not give rise to forum shopping concerns, do not undermine the predictability of the law, nor otherwise implicate the legal values that counsel in favor of uniformity. Instead, the Supreme Court’s attention to field splits may suggest that legal universality—consistency across substantive fields of law—is an important (but unstated) priority in certiorari decisionmaking.

The exercise of this universality interest through certiorari decisions in patent cases has several consequences for the Supreme Court’s agenda. The Court must better explain why field splits merit review, and we must better understand how to distinguish those field splits that implicate the Court’s universality-related concerns from those that do not.

*Assistant Professor of Law, University of California, Berkeley, School of Law. I owe many thanks to Abbye Atkinson, Shyam Balganesh, Galen Bascom, Pam Bookman, Andrew Bradt, Michael Carrier, Rebecca Eisenberg, Daniel Epps, Dan Farber, Mark Gergen, John Golden, Brad Greenberg, Paul Gugliuzza, Scott Hemphill, Camilla Hrdy, Bert Huang, Rebecca Ingber, Dmitry Karshtedt, Sonia Katyal, Alex Lemann, Yvette Joy Liebesman, Peter Menell, Rob Merges, Ion Meyn, Joy Milligan, Kali Murray, Khushali Narechania, James Nelson, Chad Oldfather, Karen Petroski, Claudia Polsky, Joel Reidenberg, Andrea Roth, N. Cameron Russell, Ian Samuel, Pam Samuelson, Avani Mehta Sood, Peter Strauss, Karen Tani, Amanda Tyler, Jennifer Urban, Molly Shaffer Van Houweling, Ryan Williams, Tim Wu, and audiences at Columbia Law School, Fordham Law School, Marquette University Law School, St. Louis University School of Law, the University of California, Berkeley, School of Law, and the University of California, Irvine, School of Law for thoughtful comments and suggestions. For excellent research assistance, I thank the superb law librarians at Berkeley Law, Justin Abbasi, Julie DeVries, Jessica Hollis, Ryan Kwock, and Charles Miller. I also thank Gary Fox, Philip Hammersley, and the members of the Michigan Law Review for their careful editing and helpful suggestions.

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