How Might New Supreme Court Justice Barrett Rule on IP Cases?

How is the newest Supreme Court Justice, Amy Coney Barrett, likely to rule in Intellectual Property cases?

Justice Barrett is only 48 years old. Given that Supreme Court justices serve for life, she could be interpreting the law for the next 40 years or more. Her predecessor, Ruth Bader Ginsburg, died in September at the age of 87.

Justice Barrett has spent little time on the bench. She was a judge on the US Court of Appeals for the Seventh Circuit from 2017 to 2020. Before that, she was a professor at Notre Dame Law School, where she taught constitutional law and civil procedure.

During her confirmation hearings, Justice Barrett was asked her views on IP law by Senator Thom Tillis (R-NC), who chairs the Senate Judiciary Committee’s Subcommittee on Intellectual Property:

Moving to [an] area that’s been addressed on the committee on intellectual property and patent law eligibility. As chairman of the subcommittee, I’m really interested in protecting the intellectual property of the American innovation economy. There’s no question that we’re the leader in the world. But in recent years we’ve seen a lot of Supreme Court cases that have waded into patent eligibility, producing a series of opinions that have really muddled the waters (without naming the specific cases, but likely referring to Mayo Collaborative Services v. Prometheus Laboratories, Inc., 132 S. Ct. 1289 (2012); Alice Corp. Pty. Ltd. v. CLS Bank Int’l., 134 S. Ct. 2347 (2014)). And in some cases, I agree with the decision but I worry about the methodology that they used to get there. So, I’m curious about your thoughts. In my committee, we’ve talked about specific cases that we could potentially abrogate if we could get bipartisan support and we’re in those discussions. But what are your thoughts on the Supreme Court’s rulings on patent eligibility? And do you think that the court should go back and clarify at least the method that they use to reach their opinion?

Barrett responded as follows:

So, without commenting on any particular cases, which actually I have to be completely honest and confess to, I can’t think of what particular cases you might be thinking of in the patent eligibility. But without commenting on those cases in any event, I think I would say that clarity in decision-making is always something that courts should strive for. And I know on the seventh circuit, we try and I’m trying to be attuned to in writing opinions, whether it gives good guidance to lower courts and then to also those who are trying to order their conduct in compliance with the law. So, I think clarity is certainly a virtue in this context.

Senator Tillis followed up:

Copyright law and technology is other area that we’ve focused quite a bit on. I think I had one witness say that our current laws are MySpace laws in a TikTok world. There’s a lot of changes that have occurred. And we feel like there’s a need for us to maybe move forward with some clarity and some protections. The Supreme Court has spent more than a century answering questions about whether copyright law covers new technologies like cameras, player pianos, moving pictures, the list goes on, several internet enabled technologies. Do you think that the Supreme Court is the best institution to answer these questions or is that a role Congress should play?

To which Barrett responded:

Most of the things you’re identifying sound to me like matters of policy. And so, those seem like matters that are best addressed by the legislature, a democratically elected body, not policy made by courts.

Examining Judge Barrett’s long academic, and shorter judicial, record leaves much unknown about her likely disposition towards intellectual property matters. However, it is highly likely she will be guided by her commitment to textualism.

In the case of Sullivan v. Flora, Inc., 936 F.3d 562 (7th Cir. 2019), Barrett joined a unanimous Seventh Circuit decision affirming the dismissal of a plaintiff-writer’s copyright infringement case regarding what constitutes a “work” when multiple images have been registered under a single copyright application. Sullivan involved an alleged violation of a license to use a number of individual illustrations where the definition of a “work” was critical because it helped determine statutory damages.

In another copyright case, Vernon v. CBS Television Studios, Case No. 18-2795 (7th Cir. Apr. 12, 2019), then-judge Barrett joined the panel’s decision that allegedly infringing elements of television show scripts were unprotectable elements known as scenes a faire sometimes translated as “scenes which must be done.” Interestingly, the scenes a faire doctrine plays a role in the behemoth Google LLC v. Oracle Am., Inc., No. 18-956, just heard by the Supreme Court and awaiting decision. While it is unlikely Justice Barrett would join in any opinion in that case, the scenes a faire doctrine may feature as an interesting part of the determination of whether copyright protection extends to a software interface.

According to Bloomberg Law,

Overall, Barrett’s written opinions have not clearly favored intellectual property owners or accused infringers. In five trademark and trade secret cases where there was a clear result, Barrett voted for the owner three times and for the accused infringer two times. In a handful of IP cases, there was no clear winner or loser, and Barrett wrote or joined decisions that gave partial wins to both sides.

Of course, it may not be possible to accurately predict a Justice’s likely rulings in any particular case or area of the law. However, one can hope that Justice Barrett sticks to her professed desire to write clear opinions to help guide lower courts and individuals, as she repeatedly mentioned in her responses to senators’ questions during her confirmation hearing.