IP Issues with Judge Barrett

The following comes from the Amy Coney Barrett Senate Confirmation Hearing Day 3 Transcript

Senator Tillis: (54:08)

I was talking with Senator Coons, who is the ranking member on a committee that I chair, a sub-committee here on intellectual property. We’ve done a lot of work and we’re working on a bipartisan bicameral basis. And I have to thank Senator Blumenthal for probably being one of the more active members in this committee. I think it’s an area where we really are working on a bipartisan basis.

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. 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?

Amy Coney Barrett: (57:01)

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: (57:38)

And I think that we’re working, like I said, on a bipartisan bicameral basis to help or do it on our part. 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?

Amy Coney Barrett: (58:29)

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.

32 thoughts on “IP Issues with Judge Barrett

  1. 8

    … and now,

    Justice Barrett.

    May she be the fulcrum (pivot point) of the Kavanaugh Scissors to cut the Gordian Knot of the Supreme Court’s mess of patent eligiblity.

  2. 7

    The better questions would have been: Where are you on privy courts? What is a privy (Kings) court? Can we create privy courts as congress? Separation of powers? Right angles on the 3 departments? What is the 7th Amendment? What does it protect? Can the Executive department obviate a case after a 7th Amendment jury trial decision (beyond the pardon power)? When do rights vest? What is the “public rights doctrine” (is that right name? ) theory of property? But of course, these questions are being posed by Hill rats – and Hill rats that believe that Marbury was a usurpation of power – believe me (I know a ton of Hill rats)- so you can’t expect much of from them.

    1. 7.1

      I agree.

  3. 6

    In other words, I don’t know anything. So that better than Marshall’s answer – from the 2nd circuit on his IP question during his confirmation – “I’m from the 2nd circuit, we don’t believe in patents.”

  4. 5

    Did Senator Tillis actually say, “Muddled the waters”?

    1. 5.1

      Well . . . at least he didn’t say anything ’bout draining a swamp. :-)

      Have a nice weekend everyone!

  5. 4

    Be grateful at least one Senator raised intelligent questions about IPR, no less, for such a large audience, when so many other issues are obviously deemed so much more important.

    1. 4.1

      BTW, I take ..”in some cases, I agree with the decision but I worry about the methodology that they used to get there” by this IP-influential Senator as his having noticed patent claims shot down on 101 as claims that should have been dealt with before under 103 and/or 112, as many commentators here have noted.

      1. 4.1.1

        I am not sure that I can arrive at the same spot, Paul.

        If it were as easy as that, he would not have waffled (or caved) to the Big Tech Trojan Horse ploy, and would have resolved 101 directly on its face.

    2. 4.2

      It’s a wonderful week to remember the happy news that Senator Tillis is behind in the polls and likely to be removed from any post of authority over us after 3 November. He will no longer be relentlessly threatening the integrity of the patent system on behalf of trolls.

      1. 4.2.1

        You are aware that he had no such allegiance to “Tr011s” and was actually in the pocket of Big Tech, right?

  6. 3

    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. And in some cases, I agree with the decision but I worry about the methodology that they used to get there. … [W]hat 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?

    This is an odd question and might have been an interesting one if Judge Barrett had thoughts to volunteer on the patent cases. “The method” the Supreme Court uses seems clear enough. 35 USC 101 is broadly written, but for a very long time the court has read in exceptions for “laws of nature, natural phenomena, and abstract ideas.” The scope of those exceptions is vague, but somewhat crystallized in Benson, Flook, and Diehr. The court’s decisions from Bilski onward seem to take all of that as a starting point. The court isn’t going to get rid of the exceptions, there’s only so much that can be done to clarify them, and if people don’t like the results individual cases then the remedy lies with Congress. I’m not sure what the senator has in mind when he asks “do you think that the court should go back and clarify at least the method that they use to reach their opinion?”

    1. 3.1

      I’m not sure what the senator has in mind when he asks “do you think that the court should go back and clarify at least the method that they use to reach their opinion?”

      Diehr purported to be “clarifying” Flook, but really Diehr was over-ruling Flook sub-silentio (a point that was not lost on Justice Stevens—the author of Flook—who made plain in his Diehr dissent that he was not fooled by all of the “we are not over-ruling” talk in the Diehr majority’s opinion). I expect that this is the sort of “clarification” that Sen. Tillis had in mind. A lot of us were hoping that the Court would have taken Ariosa to do-unto-Mayo as Mayo had done-unto-Diehr.

      1. 3.1.1

        Greg alights upon something that I have discussed in detail (without the courtesy of giving me proper credit): one should pay attention to which Justices are saying what in the slate of Supreme Court eligibility cases.

        Not only Steven’s dissent in Diehr, but his very own dissent dressed as a concurrence in Bilski (in which case he had been slated to write the majority opinion, but lost that opinion because he wanted to directly overwrite Congress’s words on parenting for business methods).

    2. 3.2

      The scope of those exceptions is vague, but somewhat crystallized in Benson, Flook, and Diehr. The court’s decisions from Bilski onward…

      You seek to paint an evolution of clarity or ‘winnowing’ that is just not there.

      Rather, the reverse is true, as there was a violent, even if attempted to be painted in glossy, continuous terms, treatment of past cases when in truth, the cases contradict each other, cabin earlier cases, and then seek to re-interpret there own cases cabining earlier cases.

      One
      Giant
      Gordian
      Knot

      1. 3.2.1

        Sounds like it’s time for . . . wait for it . . . wait for it . . . some Amy Coney Barrett scissorin’!

        1. 3.2.1.1

          Lol – nice play on the concept.

          Perhaps ACB could be the pivot point that has (so far) been missing for the two Kavanaugh shears.

          … maybe Kavanaugh-Barrett Scissors…?

          1. 3.2.1.1.1

            lol — shoot; I’d even embrace (ever so gingerly; with masks on and six feet apart, of course!) such scissorin’ from . . . Edward Scissorhands!

            So you in, Eddy?!

            American innovation needs you!

    3. 3.3

      As to the court overruling its exceptions, please bring me up to speed. Are they finding those exceptions in the statute itself or are they saying they are constitutionally imposed? If they are the statute, then Congress can try to get them to change their mind; if it is the Constitution well . . On to something else.

      1. 3.3.1

        The Constitutional clause is an apportionment of authority among the three branches.

        It would be ‘miracle’ of scrivining to find ‘exceptions’ in that apportionment.

        1. 3.3.1.1

          Sorry, madam, I should have been more specific. I was asking about the exceptions to the scope of patent-eligible subject matter, namely “laws of nature, natural phenomena, and abstract ideas.”

          1. 3.3.1.1.1

            I understood full well what you were asking about.

            My reply still stands.

            How are you supposing this leap to being a Constitutional issue?

            Do you think that merely saying the word “Constitution” is enough?

            Are you supposing a cogent, structured view?

            Do you have some hypothesis?

            1. 3.3.1.1.1.1

              No, I am simply asking a question. When scotus says something’s not eligible, are they saying that is because of the statute or because of the Constitution or do they not give any explanation at all?

              1. 3.3.1.1.1.1.1

                What is the basis for your choice of words in asking that question?

                Or are you of the habit of asking inane questions with no legal basis?

                1. I don’t think it is an inane question. SVG — the answer might be in the Bilski opinion, if I remember correctly. Justice Thomas framed it as an exception to the statutory provision. Not as a constitutional issue. And, I take your point that because it is statutory, Congress can easily fix it.

              2. 3.3.1.1.1.1.2

                SVG–they are using the Constitution in Alice.

                The logic is that the claims are so broad that they don’t “promote” innovation and thus were unconstitutionally granted.

                1. Thank you.

                  Actually, I have thought some more about this issue and Judge Barrett’s professed dedication to originalism.

                  Scotus has been creating these exceptions out of its own policy discernments, and as a result has not been deciding cases based on the original meaning of the words of the statute.

                  So, if the new Justice Barrett gives more emphasis to original meaning and a bit less to precedent and reliance interests (another feature of the law that she acknowledges) then she may be of a mind to point out that the exceptions should be overruled.

  7. 2

    How about, “IP Issues For Judge Barrett”…?

    The “With” comes across as a bit of Clickbait, as if there are problems uncovered WITH Judge Barrett’s position on IP law.

    If anything, even through a lack of detailed experience, she displays the proper deference for the Separation of Powers (the item being hinted at).

  8. 1

    One correction:

    “There’s no question that we USED TO BE the leader in the world.”

    For which we can thank Alice, Mayo, Bilski, eBaby . . . and the unconstitutional PTAB Death Squad.

    1. 1.1

      . . . AND the misapplication of Alice / Mayo by the CAFC.

    2. 1.2

      “There’s no question that we USED TO BE the leader in the world.”

      I agree that the SCotUS seems to do its level best to knock us out of the #1 slot, but we are still the world leader. See pg. 49 of the WIPO’s 2020 PCT report (“[T]he USPTO remained the office receiving by far the most patent applications via the PCT System, with… 24% of all [national phase entries] initiated worldwide… The USPTO was followed in descending order by the…EPO…, the… CNIPA… and the JPO.. Including the Korean Intellectual Property Office (KIPO), the top five offices accounted for about 69% of the NPEs initiated…”). I think, however, that it is fair to say that we remain in #1 despite the SCotUS’ best efforts.

      1. 1.2.1

        Anyone remember the self-description of “the only valid patent is one that has not yet appeared before us?”

        Anyone remember the driver for the Patent Act of 1952?

        Anyone?

        Bueller?

        .

        Bueller?

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