Although US Supreme Court Justices Sonia Sotomayor (2009) and Elena Kagan (2010) are not as vocal about their opinions on patent law as is, for example, Judge Richard Posner, they both had IP experience before they came to the high court.

Justice Sotomayor was an IP litigator with the Manhattan firm of Pavia & Harcourt from 1984 to 1992. As a judge in the US District Court for the Southern District of New York from 1992 to 1998 she was involved in a number of high-profile IP cases such as Tasini v. New York Times. One of the patent cases she decided (inREFAC Intern., Ltd. v. Lotus Dev. Corp.) was upheld by the Federal Circuit and the other (Intellectual Property Dev., Inc. v. UA-Columbia Cablevision of Westchester, Inc.) was overturned. As a judge at the Second Circuit, she heard two cases that dealt with patent issues in an antitrust context.

Justice Kagan never served as a judge before becoming a Supreme Court Justice. As Solicitor General, she oversaw the government’s case in Bilski, in which her office supported the Federal Circuit’s “machine or transformation” test for determining patent-eligible subject matter.

Both new Justices have taken part in high court decisions that broadened patent rights and favored patent owners – but not too far.

For example, in Microsoft Corp. v. i4i Ltd. P’ship, Justice Sotomayor wrote the majority opinion in which Justice Kagan joined, upholding the “clear and convincing” standard for invalidating patent claims in litigation and making it harder to invalidate a patent.

However, in Kappos v. Hyatt, Justice Sotomayor’s concurrence stressed that a patentee’s right to introduce new evidence in a proceeding under 35 U.S.C.S. § 145  does not apply to evidence deliberately suppressed or withheld in bad faith from the Patent Office.

Both Justices supported the Supreme Court’s unanimous decision Mayo v. Prometheus, in which the Court noted that:

Patent protection is, after all, a two-edged sword. On the one hand, the promise of exclusive rights provides monetary incentives that lead to creation, invention, and discovery. On the other hand, that very exclusivity can impede the flow of information that might permit, indeed spur, invention, by, for example, raising the price of using the patented ideas once created, requiring potential users to conduct costly and time-consuming searches of existing patents and pending patent applications, and requiring the negotiation of complex licensing arrangements.

So, while monumental change has not happened, it looks as if patent holders have new justices that are able to grasp issues in the IP arena.