The solicitor general has been called the “tenth justice,” in part because the nine actual U.S. Supreme Court justices often call on the Solicitor General’s Office to offer its considered view on questions pending before the court. In particular, the Supreme Court occasionally will call for the views of the solicitor general—what is known as a “CVSG” in Supreme Court lingo—on whether the court should grant certiorari in cases where the United States is not a party. Recent years have seen a marked uptick of CVSG’s in patent-related cases, including a record-setting six CVSG’s so far in the Supreme Court’s current term. That trend is both a reflection of the court’s growing interest in patent disputes and an illuminating signal of which specific patent questions the court is interested in deciding—especially since the court almost always adopts the solicitor general’s recommendation in this context. This article explores this recent trend in more detail, describes the currently pending patent CVSGs, and offers some thoughts on why the trend should interest patent litigators.

Despite the recent growth of CVSGs in patent cases, the CVSG device has a relatively long history at the court. In some cases, such as cases implicating foreign affairs, CVSG responses provide the court with the Executive Branch’s input on how the court’s actions might impact U.S. interests. In other cases, where a clear federal interest is not apparent, the CVSG process simply confirms that the Supreme Court values the solicitor general’s advice as a candid, repeat litigant before the court. In all instances, a CVSG indicates that the court is strongly considering granting certiorari in the relevant case—or at least is interested in deciding the question presented at some point.