Panel Paper: Actors and Determinants of Patent Policymaking By the Courts: What Are Socio-Economic Arguments Worth in the Face of Politics?

Saturday, November 10, 2018
8209 - Lobby Level (Marriott Wardman Park)

*Names in bold indicate Presenter

Elie Ji-Yun Sung, Georgia Institute of Technology

The fast pace of innovation relative to traditional policymaking has led the judicial branch to become the key source of policy change for the past three decades (Merrill et al., 2004). Within a relatively static framework set by the two other branches of government, courts’ rulings have continuously changed the strength of patents. In the meantime, academics, practitioners and the public have not settled the debate regarding the impact of these changes in the patent strength on innovation and socio­economic outcomes (Cohen, 2005). Further, studies of the determinants of decision­making behind these changes has been largely left to legal scholars who rely on an examination of court documents and the structure of the legal system (Chien, 2010; Holbrook, 2013). To bridge determinants of policymaking with outcomes of policy, novel theoretical insights are needed because the literature on policy processes offers little in the way of theory to address policymaking through the courts (Sabatier and Weible, 2014). This study aims at filling this gap in the literature and provides empirical evidence on policymaking in patent policy, and more generally for areas in which courts are key policymakers.

In this study, I provide a comprehensive view of the role of government and interest groups by drawing on the “interbranch perspective” to account for the influence of other branches on courts’ decisions (Barnes, 2007; Dahl, 1957). Using this framework, I explore the determinants of courts’ decisions, with particular attention to influences of interest group pressure. I use court documents (Westlaw) for all patent­related Supreme Court cases over 2000­2015 in combination with lobbying data (Senate Office of Public Record).

Within this empirical setting, I identify the determinants of courts’ decisions and estimate the extent of the influence of interest groups that potentially use their resources to attempts to affect directly court decisions through amicus briefs, or indirectly, through political pressure on the other branches of government. I explore if court decisions are influenced by: 1) arguments v. the characteristics of those that make them, 2) interest groups’ pressure, directly court decisions through amicus briefs, or indirectly, through the other branches of government.


Chien, C. V., 2010. Patent Amicus Briefs: What the Courts’ Friends Can Teach Us About the Patent System. UC Irvine Law Rev. 1.

Cohen, W.M., 2005. Patents and Appropriation: Concerns and Evidence. J. Technol. Transf. 30, 57–71. doi:10.1007/s10961­004­4358­7

Dahl, R.A., 1957. Decision­making in a Democracy: The Supreme Court as a National Policy­maker. J. Public Law 6, 279–295.

Holbrook, T.R., 2013. Explaining the Supreme Court’s Interest in Patent Law. IP Theory 889, 1.

Merrill, S.A., Levin, R.C., Myers, M.B., 2004. A Patent System for the 21st Century, National A. ed.

Sabatier, P.A., Weible, C.M., 2014. Theories of the Policy process