Amy Coney Barrett: A Blank Notebook on Intellectual Property
With the conclusion of Judge Amy Coney Barrett’s confirmation hearing, her place on the Supreme Court is all but certain.1 While her thoughts on intellectual property may not make mainstream news, Judge Barrett’s voice will be needed as technology advances. However, examining her testimony, academic writing, and short judicial career leaves much to the imagination of how she could decide on intellectual property matters.
Intellectual property was certainly not the main focus of the senate confirmation hearing. Intellectual property was only briefly discussed during the third day of the confirmation hearing.2 Senator Thom Tillis, who chairs the Senate Judiciary Committee’s Subcommittee on Intellectual Property, asked her thoughts on recent Supreme Court eligibility decisions.3 He additionally asked if the Court needed to “clarify at least the method that they use to reach their opinion?”4 While he did not name any case explicitly, he is likely referencing to Alice Corp. Pty. v. CLS Bank International5 and Mayo Collaborative Services v. Prometheus Laboratories, Inc.,6 which disrupted the patent world in the early 2010s.7 Judge Barrett did not recall the patent eligibility decisions the Senator was referencing but stated that clarity was something the courts should strive for.8 When asked about copyright laws and how they “are MySpace laws in a TikTok world,” she responded by stating that “those seem like matters that are best addressed by the legislature.”9 Her testimony illustrated her general thoughts about the court, but her specific opinion on intellectual property remains shrouded.
The next logical place to look would be at Judge Barrett’s twenty-year professional career. After graduating from Notre Dame Law School, she returned to teach at her alumna in 2002.10 She spent the next fifteen years as a professor at Notre Dame teaching classes such as constitutional law, civil procedure, and federal courts.11 During her tenure, Judge Barrett wrote a number of law review articles, however, none of her published articles speak directly on intellectual property.12 Though her writings do confirm her commitment to originalism.13
Judge Barrett was recently appointed to the United States Court of Appeals for the Seventh Circuit in 2017. In this short period of time, Judge Barrett has only decided a small number of Intellectual property cases for the Seventh Circuit. Bloomberg Law has posted an article analyzing her decisions relating to intellectual property.14 The authors found that Judge Barrett did not show favoritism to either infringers or property owners, siding with property owners three times and accused infringers twice.15 The authors were able to concluded that her opinions had a “strong textualist orientation.” 16
As we all know by now, and has been repeatedly confirmed, Judge Barrett is an originalist and textualist. She will be the 6th conservative Justice on the Court.17 However, recent patent decisions illustrate how identifying as a textualist or a conservative may not be the best indication on how a Justice would rule on intellectual property decisions.
In Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, Justice Thomas delivered an opinion in a majority decision declaring that Inter partes review (IPR) under 35 U.S.C.S. §§ 311-319 were constitutional.18 IPRs are challenges to a granted patent in front of the United States Patent and Trademark Office. Justice Neil Gorsuch wrote the dissent and was joined by Chief Justice John Roberts.19 Again is 2020, Justice Thomas wrote the majority opinion in Thryv, Inc. v. Click-To-Call Technologies, LP relating to appealing Patent Trial and Appeal Board decisions.20 Once more Justice Gorsuch wrote the dissent and was joined this time by Justice Sonia Sotomayor.21 Both Justice Thomas and Justice Gorsuch are self-proclaimed textualists, yet, they have ended up on different sides of these decisions.
With the 2020 election, Judge’s Barrett’s potential views of intellectual property have taken a back seat for now. But these issues will certainly not go away. Considering her relative age, she will likely have a long-lasting impact on the Court and intellectual property rights. We will just have to wait and see how she writes her way into history.
Mitch McConnell (@senatemajldr), Twitter (Oct. 22, 2020, 1:56 PM), https://twitter.com/senatemajldr/status/1319336882216472576 [https://perma.cc/RB4P-9YVB].↩
Dennis Crouch, IP Issues with Judge Barrett, Patentlyo (Oct. 15, 2020), https://patentlyo.com/patent/2020/10/issues-judge-barrett.html [https://perma.cc/5C5T-K5E6].↩
573 U.S. 208 (2014).↩
566 U.S. 66 (2012).↩
Gene Quinn, Alice Five Years Later: Hope Wanes as 101 Legislative Discussions Dominated by Big Tech, IPWatchdog (May 5, 2019) (significantly changing patent eligibility and frustrating patent practitioners), https://www.ipwatchdog.com/2019/05/05/alice-five-years-later-gearing-up-to-commemorate-the-death-of-101/id=108926/ [https://perma.cc/DZP8-SP5B].↩
See Crouch, supra note 2.↩
Amy Coney Barrett, Originalism and Stare Decisis, 92 Notre Dame L. Rev. 1921 (2017); Amy Coney Barrett & John Copeland Nagle, Congressional Originalism, 19 U. Penn. J. of Const. L. 1 (2017).↩
Howard S. Hogan, Where Does Judge Barrett Fall on IP Issues?, Bloomberg Law (Sept. 30, 2020, 4:00 AM), https://news.bloomberglaw.com/ip-law/where-does-judge-barrett-fall-on-ip-issues [https://perma.cc/MQT9-96WH].↩
Amelia Thomson-DeVeaux & Laura Bronner, How A Conservative 6-3 Majority Would Reshape The Supreme Court, FiveThirtyEight (Sept. 18, 2020, 6:00 AM), https://fivethirtyeight.com/features/how-a-conservative-6-3-majority-would-reshape-the-supreme-court/ [https://perma.cc/7LSV-BNRR].↩
138 U.S. 1365, 1367 (2018).↩
Id. at 1380.↩
140 U.S. 1367 (2020).↩
Id. at 1378.↩