Skilled in the Art: Kavanaugh's (Thin) Track Record on IP
Welcome to Skilled in the Art. I'm Law.com IP reporter Scott Graham. In today's briefing I'm going to talk about Brett Kavanaugh. Not about his confirmability. Not about how he might vote on Roe v. Wade. Only what we know of his approach to intellectual property. And as is so often the case with Supreme Court nominees, the answer is pretty much jack. But I'm gonna have a try below – along with a look at an Oil States sequel that could be wending its way to the Supreme Court faster than previously expected. As always you can email me your thoughts and feedback and follow me on Twitter. ➤➤ Would you like to receive Skilled in the Art as an email? Sign up here.
Brett Kavanaugh's Brushes With IP
Like Neil Gorsuch before him, Supreme Court nominee Brett Kavanaughcomes with a developed track record of jurisprudence from a regional appellate circuit. Also like Gorsuch, he has not served as a district judge. So we have a few copyright rulings here, a trademark case there, and virtually no idea of how the judge feels about patents, at least not that has surfaced yet. Because he sits on the D.C. Circuit, the soft IP cases tend to turn more on issues of administrative law. For example, he's penned two opinions upholding royalty fee distributions by the Copyright Royalty Board. Both were routine, unanimous opinions in which he deferred to the board's reasonable decision making. In a third royalty board case, he wrote a separate concurrence pointing out that the hiring of board members violated the Constitution's appointments clause. The full court later adopted Kavanaugh's position and the Librarian of Congress was forced to change its supervisory procedures. The Patent Trial and Appeal Board has had its own version of this issue. Eleven years ago University of Virginia law professor John Duffy pointed out the problem, prompting legislation that put the appointment of PTAB judges with the Secretary of Commerce, rather than the PTO director. Paul Hastings appellate partner Igor Timofeyev said Kavanaugh's D.C. Circuit experience could serve him well with a Supreme Court IP docket that increasingly originates from the PTAB. “These kinds of questions that deal with the structure of administrative process and how it correlates with judicial review, I think Judge Kavanaugh's D.C. Circuit experience is going to be invaluable for that,” he said. McDonnell Boehnen Hulbert & Berghoff partner Kevin Noonan said he would expect Kavanaugh, like Gorsuch and other conservative members of the court, to generally resist deferring to administrative agency rulemaking. But the PTO has a better case for deference than, say EPA or OSHA, because the Constitution explicitly grants Congress the power to make patent law, Noonan said. Noonan, Timofeyev and Emory law professor Tim Holbrook all noted that in its Oil States decision this spring, the Supreme Court explicitly left open the possibility of future constitutional challenges to AIA procedures. Kavanaugh could have a say on whether the PTAB should be barred from invalidating patents that predate the America Invents Act, and/or whether post-grant review implicates due process or takings concerns. If confirmed, he might not have to wait long to weigh in. Just last week, Trading Technologies Inc. asked the Federal Circuit for permission to file supplemental briefing on those issues in an appeal that could be heard as early as this fall. Trading Technologies is appealing a raft of covered business method (CBM) review decisions that invalidated patents it holds on its securities trading platform. It has told the court in a related appeal that it had no way of knowing when it applied for and received its patents that the PTO could “singlehandedly wipe away” its investment on Section 101 grounds, which had never before been part of PTO reexamination. Trading Technologies is represented by Baker Hostetler. The company also is asking permission to make a second new argument: “Namely, the AIA violates the Appointments Clause because PTAB judges have the power to render final decisions, making them principal officers,” the company argues. Now where do you suppose they got that idea?
K&S Nabs Paul Hastings Pharma Partners
King & Spalding has picked up two life sciences IP litigators from Paul Hastings, my ALM colleague Christine Simmons reports. Gerald Flattmann, one of the attorneys who was duking it out a few years ago with Kyle Bass over the short-selling of pharma stocks, will serve as chair of K&S' life sciences patent litigation practice. Joining him is Evan Diamond. K&S now numbers about 10 life sciences patent lawyers.“The demand has always been there and always will be there and this is an opportunity to try to get people with outstanding trial records and resumes so that we can better service our clients,” said the firm's litigation chief, Andrew Bayman. The firm numbers about 50 patent litigators overall. Simmons notes the uptick in the IP litigation lateral market. A New York-based recruiter told her that while demand was quieter two years ago, AM Law 100 firms are now reporting a “strategic need” for IP litigators.
A Surreal Trademark Case
You can display a permanent collection of original Salvador Dali artwork, but can you use Dali's name and likeness as part of the museum's name?The Spanish foundation that administers the late surrealist's IP rights doesn't think so.
The Art of Throwing Out Copyright Claims
Chad Harbach's popular 2011 novel The Art of Fielding has been cleared of copyright infringement claims, my ALM colleague Colby Hamilton reports. U.S. District Judge Alvin Hellerstein ruled against plaintiff Charles Green, who contended that Harbach lifted content from “Bucky's 9th,” a manuscript that he submitted to New York literary agents in the 1990s. Both novels feature a protagonist on a struggling Division III college baseball team who gets hit by a pitch at a climactic moment. But “that's the extent of the similarities,” Hellerstein wrote. “When read in context, none of plaintiff’s allegations of substantial similarity hold up, the beaning scene included.” It's a win for a Davis Wright Tremaine team led by partner Elizabeth McNamara. Green said he respectfully disagrees with Hellerstein and intends to appeal to the Second Circuit.
That's all from Skilled in the Art for today. I'll see you all again Friday.
