In my former life, I spent ten years as a litigator, the bulk of it as a Supreme Court and appellate specialist. Experienced practitioners will generally warn you about reading too much into the statements that appellate judges make at oral argument as a basis for predicting how they’re going to rule in a case. This is particularly true with the high court — the Justices are a cagey bunch and frequently are playing devil’s advocate with counsel even when they appear not to be. And their views can, and frequently do, change between the oral argument and the issuance of the final opinions. (At the oral argument in Grokster, just to take a recent example, the Justices breathed hardly a word about the theory on which they ultimately rested their decision.) Nevertheless, trying to read the tea leaves is something all us Court-watchers do, however much we might recognize the futility of the endeavor.
With that very large caveat in mind, however, I’m struck by how the reporting on today’s oral arguments in KSR v. Teleflex seems to have rapidly coalesced around the expectation that the Court is on its way to delivering yet another smackdown to the Federal Circuit in a patent case. See: here, here, and here. I haven’t seen (or heard) anything yet from two of the best correspondents covering the Court, Linda Greenhouse and Nina Totenberg, but at this moment, it’s looking like we may have an altogether different “obviousness” standard in place by the next time I have to teach my IP survey course. And yet another Federal Circuit reversal (particularly so closely on the heels of last spring’s eBay v. MercExchange) would be more than a little embarrassing for the court that is supposed to enjoy particular expertise in the realm of patents.
Update: Here’s Linda Greenhouse’s coverage in the NYT (registration required, etc., etc.). She is characteristically careful to avoid making specific predictions, but nevertheless conveys the impression of the Justices really beating up on Teleflex and the Federal Circuit’s “teaching/suggestion/motivation” test for obviousness. And here’s the argument transcript.