Indeed, the Supreme Court held exactly that in Bose Corp v. While the decision concerned freedom of speech and product disparagement, not patents, a modest extension would have substantial impact on the latter. One commentator has argued that the Court's reasoning makes it difficult to restrict that rule to first amendment cases. He also urges that deep review of constitutional facts is compelling when they have been found by administrative agencies. It is doubtful that the Supreme Court had occasion to consider the implications tof his.
Patent attorneys are fond of referring to the constitutional underpinnings of the patent system.
Even an 1850 case often regarded as the genesis of the nonobviousness requirement was not based on the Constitution. Indeed, he insisted that mere novelty, even coupled with market success, had long been inadequate to support patent validity. Moreover, it arose in the context of the Court's addressing the scope of appellate review in patent cases. There, the Court was skeptical of the merits of a patent found valid by two lower courts. While it had a rule against re-examining findings consistently made by two lower courts, the Court nevertheless found the patent invalid.