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June 19 was a big day for Simon Tam. It was the day the musician and his lawyers at Archer persuaded the U.S. Supreme Court to strike down a law banning disparaging trademarks.

It was also the lone bright spot of the 2016 term for the U.S. Court of Appeals for the Federal Circuit. Judge Kimberly Moore and eight other judges correctly anticipated the Supreme Court’s holding that the ban amounted to viewpoint discrimination.

The appellate court did not fare nearly as well on patent cases. The Supreme Court took up six of them—8 percent of its docket last term—and reversed the Federal Circuit on each.

Along the way the Supreme Court wiped away precedents on venuelaches and patent exhaustion that had stood on the Federal Circuit’s books for more than 25 years each. Four of the six Supreme Court rulings were by unanimous vote; the other two 7-1.

Read More:   After Years of Setbacks, Patent Owners Try to Turn Tide in Congre ss   Supreme Court Caps Term With Flurry of Rulings, Order s   These 3 IP Boutiques Still Reign at Patent Trial and Appeal Board

“There’s a certain irony to the Supreme Court,” said Emory Law IP professor Timothy Holbrook, recalling that the justices emphasized the “settled expectations of the inventing community” when disagreeing with the Federal Circuit years ago, a long-standing doctrine of patent liability.

Holbrook said he does not think the unanimous reversals are a black eye on the Federal Circuit as much as they reflect a generalist Supreme Court trying to speak with one voice to bolster its credibility with the specialized appellate court. The large number of cert grants reflect a Supreme Court that’s both interested in patent law and concerned about the Federal Circuit as an institution, Holbrook said.

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Scott Graham

Scott Graham focuses on intellectual property and the U.S. Court of Appeals for the Federal Circuit. He writes ALM's Skilled in the Art IP briefing. Contact him at sgraham@alm.com.

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