Predicting the Winners in Commil v. Cisco and Kimble v. Marvel

The Supreme Court heard two oral arguments in patent cases on Tuesday.   I’m predicting the winners based on the method of counting up the number of questions.

The first case, Commil USA v. Cisco Systems, asks whether the Federal Circuit erred in holding that a defendant’s belief that a patent is invalid is a defense to induced infringement under 35 U.S.C. § 271(b).  Justice Breyer was recused.

Figure 1.


As Figure 1 indicates, the total question count favors the Respondent (Cisco), which received 17 fewer questions than the Petitioner’s side (including the Solicitor General as amicus supporting the Petitioner).  Even discounting the fact that the Court might be inclined to ask both attorneys on the Petitioner’s side the same or similar questions (thus inflating the number of questions for the Petitioner’s side), I will go with a victory for the Respondent. It would be a rare recent affirmance of the Federal Circuit.

The second case, Kimble v. Marvel Enterprises, asks whether this Court should overrule Brulotte v. Thys Co., which held that “a patentee’s use of a royalty agreement that projects beyond the expiration date of the patent is unlawful per se.”


As Figure 2 indicates, the total question count favors the Respondent (Marvel Enterprises), whose side (along with the Solicitor General supporting Respondent) received 8 fewer questions than the Petitioner.

The question count by Justice is more mixed.  Four Justices asked the Respondent’s side (with SG) more questions, but the margins were not great: Roberts (+5), Scalia (+2), Kennedy (+1), and Sotomayor (+1).  Three Justices asked the Petitioner’s side more questions: Ginsburg (+1), Breyer (+7), and Kagan (+11).  Justices Alito and Thomas asked no questions.

Even though the question count by Justice favors slightly the Petitioner, I predict a victory for the Respondent based on the total question count.


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