The Supreme Assimilation of Patent Law

"The remoter and more general aspects of the law are those which give it universal interest. It is through them that you not only become a great master in your calling, but connect your subject with the universe and catch an echo of the infinite, a glimpse of its unfathomable process, a hint of the universal law."1IntroductionPerhaps Justice Thomas is an intellectual heir to Gottfried Leibniz. Certainly, there is much separating the current Associate Justice of the Supreme Court from the Enlightenment philosopher and mathematician. But Justice Thomas's opinion in eBay Inc. v. MercExchange, L.L.C., which rejects a specialized rule to determine injunctive relief in patent cases in favor of a general equitable framework,2 bears Leibniz's intellectual stamp. Leibniz made many contributions,3 but he is perhaps best known as one of the most prominent systematizers of the seventeenth century.4 Leibniz sought to find transcendent principles in natural and mathematical phenomena, thus revealing the unified nature of the universe.5 Leibniz's quest for universality and intellectual coherence impacted law, ultimately informing the notion of "legal science" associated with Christopher Columbus Langdell and other nineteenth century formalists.6 This systemizing spirit is evident in Justice Thomas's eBay opinion, which frames itself as rejecting patent exceptionalism in favor of universal legal principles. This universalizing ethos is both substantive and rhetorical; indeed, the Court's eBay rule was actually quite novel, but the Court framed it as reflecting general equitable principles, and it has subsequently become the legal norm.7 This universalizing ethos, moreover, represents an undertheorized feature of recent Supreme Court patent jurisprudence.Although tensions between universality and exceptionalism apply throughout law,8 they are particularly relevant to patent law, which deals with highly technical subject matter. This Article draws on these tensions to offer new insight on the Supreme Court's recent patent jurisprudence. Over the past decade and a half, the Supreme Court has significantly increased its review of patent decisions from the Court of Appeals for the Federal Circuit, a quasi-specialized appellate court established in 1982 that hears appeals of patent matters from district courts and the Patent and Trademark Office (PTO). Commentators have offered several theories to interpret this development. First, many observers view these interventions as attempts by the Supreme Court to rein in expansive Federal Circuit doctrine that has made it too easy to obtain patents and unduly enhanced their power.9 Second, commentators note that the Court has consistently adopted holistic standards to replace the bright-line, formalistic rules that are characteristic of Federal Circuit patent doctrine.10This Article augments these prevailing interpretations by exploring an underappreciated descriptive theory of Supreme Court patent doctrine. Significantly extending previous scholarship, it argues that the Supreme Court's recent patent jurisprudence reflects a project of eliminating "patent exceptionalism" and assimilating patent doctrine to general legal principles. In substantial part, this trend responds to rather exceptional patent doctrine emanating from the Federal Circuit in areas as varied as appellate review of lower courts, remedies, and the award of attorney's fees. In these and other areas, the Supreme Court has consistently sought to eliminate patent exceptionalism, bringing patent law in conformity with what it characterizes as general legal standards.11 Notably, this Article also argues that the Supreme Court has utilized assimilation both rhetorically as well as substantively, framing novel doctrine in the language of assimilation.This Article represents the first comprehensive examination of patent assimilation across myriad doctrinal areas. Among other contributions, it shows that assimilation provides an expansive interpretive theory of Supreme Court patent jurisprudence that encompasses not only recent rulings but cases dating back to the establishment of the Federal Circuit. …