Intellectual property is usually the red-headed stepchild of Supreme Court nomination hearings, and the nomination of Amy Coney Barrett is no exception. With few cases to go on, most of us are stuck reading tea leaves on what her positions on intellectual property will be. But on Wednesday Chairman of the Senate Judiciary’s IP Subcommittee, Thom Tillis (R-NC) asked Judge Barrett directly some of her opinions on intellectual property issues.
First, Tillis asked her about her positions on recent SCOTUS cases related to patent eligibility:
Tillis: In recent years we’ve seen a lot of Supreme Court cases that have weighed into patent eligibility produce a series of opinions that have really muddled the waters and in some cases I think that I agree with the decisions, but I worry about the methodology they use to get there. So, I’m curious about your thoughts. In my Committee we’ve talked about specific cases we can abrogate if we can get bipartisan support and we are in those discussions. But what are your thoughts on the Supreme Court’s rulings on patent eligibility, and do you think the Court should go back and clarify at least the method they use to reach their opinion?
Barrett: So, without commenting on any particular cases, which I have to be completely honest and confess to you I cannot think of what particular cases you might be thinking of…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 try – to be attuned to in writing opinions, whether it gives good guidance to lower courts and also to those who are trying to order their conduct, you know, in compliance with the laws. I think clarity is certainly a virtue in this context.
Presumably Tillis is referring to Bilski v. Kappos (business methods can be patented even if they don’t pass the “machine-or-transformation test”), Association for Molecular Pathology v. Myriad Genetics, Inc. (isolated pieces of naturally occurring DNA cannot be patented), Mayo Collaborative Services v. Prometheus Laboratories, Inc. (methods for determining the dose of a drug based on certain metabolite concentrations in blood aren’t patentable), and Alice Corp. v. CLS Bank International (patents requiring generic computers to implement abstract ideas aren’t eligible).
And on copyright:
Tillis: Copyright law and technology is another area that we focus quite a bit on. I think I had one witness say that our current laws are “Myspace laws in a Tik Tok world.” [Note: Myspace was created in 2003, the DMCA was signed into law in 1998]. There are a lot of changes that have occurred, and we feel like there is a need for us to move forward with some clarity and protections. The Supreme Court has spent more than a century answering questions whether copyright law covers new technologies like cameras, player pianos, moving pictures, the list goes on…Do you think that the Supreme Court is the best institution to answer these questions, or is that a role that Congress should play?
Barrett: Most of the things you are identifying sound to me like matters of policy, so those seem like matters that are best addressed by the Legislature; the democratically elected body, not policy made by courts.
What should we make of these exchanges? On the one hand, Barrett’s unfamiliarity with the cases related to patent eligibility doesn’t inspire confidence. But to be fair, Tillis didn’t explicitly mention specific cases. More importantly, the current structure of the appeals process for patent litigation means only the Court of Appeals for the Federal Circuit (CAFC) hears patent cases. This is obviously well beyond Barrett’s control. It’s also clearly a problem that, unless a nominee comes from CAFC, they wouldn’t have any patent litigation at the appellate level under their belt.
With respect to copyright, I would agree with Barrett that the issues referenced by Tillis in copyright law are policy questions best left to Congress. Similarly, I think any perceived ambiguities in patent eligibility are best addressed by Congress (and to a lesser extent the Patent Office). This of course, does not mean that any given legislative change would be desirable.
Speaking for myself, I would have appreciated more substantive answers on the question of patent eligibility and more questions on copyright law not related to the DMCA (e.g. copyright eligibility and fair use). Then again, these are just two of a host of issues that the Court will have to deal with, and certainly not the ones the American people or the Senate are most concerned about. It’s a bit like being able to name all of the captains from Star Trek: a must-know for some, but something you can learn as you go and certainly not immediately disqualifying.