The Solicitor General of the United States has been called “the tenth justice,” given the prominent and trusted role the SG has played in the Supreme Court’s history since the SG’s post was created in 1870.

More recently, as I and others have noted, the Supreme Court has called for the views of the Solicitor General in what seems like a larger number of patent cases this term.  (I have no formal statistics on the point).  At the Federal Circuit conference last week, the first panel included current and former SG folk.  I don’t recall precisely who said it, or if no one did and I merely thought it based on something that was said, but the thought lingers … given that, after the Federal Circuit’s formation 1982 there can’t really be a circuit split in patent law anymore, is the SG’s Office coming to function as something like a 14th Circuit for Patent Law that the Court can consult to see if the SG would split with the Federal Circuit on a patent law question (by recommending review in a case)?  If yes, those hoping to persuade the Court to grant review in a patent case may need to begin developing a “persuade the SG’s Office” strategy as part of the overall appellate strategy in a given case.