The weekend’s news about Justice Antonin Scalia’s passing was a shocker. Justice Scalia always appeared so vigorous that he seemed much younger than his 79 years. His high level of legal scholarship was always on display. Justice Scalia was nothing if not a formidable jurist. 
Although many tributes to the man and to the jurist abound, the politics surrounding his successor are heightened. Conservatives and liberals have much to fret about given Justice Scalia’s leadership of the court’s conservatives and the importance of key decisions that impact a wide swath of the American public. But from the patent law perspective, there is little to be concerned about because patent law is one of the few legal areas where the court has been in sync. Indeed, over the last five years, 85% of the court’s patent law cases were unanimous decisions. And Justice Scalia authored no majority opinion, concurrence, or dissent in any patent case in the last five years. His lone written contribution to the court’s patent cases of the past five years was not agreeing to three footnotes in Octane Fitness, LLC. v. Icon Health & Fitness, Inc.

A chart of the court’s patent cases from the last five years is shown below:

Case Name Legal Issue Year Decided Decision Comments
Teva Pharamceuticals USA, Inc. et al. v. Sandoz, Inc. et al.

 

 

Standard of review re claim construction 2015 7-2 1 dissent
Kimble et al. v. Marvel Entertainment, LLC

 

Stare decisis, licensing of expired patents 2015 7-2 1 dissent
Octane Fitness, LLC v. Icon Health & Fitness, Inc.

 

Exceptional case for fee shifting 2014 9-0 Scalia, J. joined the court’s opinion except for footnotes 1-3
Highmark Inc. v. Allcare Health Management System, Inc.

 

Standard of review for exceptional fee cases 2014 9-0
Medtronic Inc. v. Mirowski Family Ventures

 

Subject matter jurisdiction, burden of proof re infringement of a licensed patent 2014 9-0
Nautilus, Inc. v. Biosig Instruments, Inc.

 

 

Indefiniteness 2014 9-0
Limelight Networks, Inc. v. Akamai Technologies, Inc. et al.

 

 

Inducing infringement 2014 9-0
Alice Corporation Pty. Ltd. v. CLS Bank International et al.

 

 

Patent eligibility; abstract ideas 2014 9-0 1 concurring opinion
Gunn et al. v. Minton

 

 

Subject matter jurisdiction in a patent malpractice case 2013 9-0
Bowman v. Monsanto Co. et al.

 

 

Patent exhaustion 2013 9-0
Mayo Collaborative Services v. Prometheus Laboratories, Inc.

 

 

Patent eligibility; laws of nature 2012 9-0
Kappos v. Hyatt

 

 

Appeals from the PTO; evidence and standard of review 2012 9-0 1 concurring opinion
Microsoft Corp. v. i4i Limited Partnership

 

 

Presumption of validity, standard of proof to invalidate a patent 2011 8-0 2 concurring opinions; Justice Roberts took no part in consideration or the decision

This term, the court has granted review to the following patent cases:

And other patent case cert petitions are still pending before the court.

But the loss of Justice Scalia is unlikely to be felt, or felt much, in patent cases going forward—even if the loss will be felt (perhaps greatly felt) in many other legal cases, including even in other intellectual property cases.