How Will Kavanaugh Vote on Issues I Care About? A Quick Look at His IP Track Record.

December 21, 2018

For most, an introduction to Justice Kavanaugh would be redundant. However, for the few interested in intellectual property, Kavanaugh’s confirmation comes timely to two upcoming intellectual property cases. First, Fourth Estate Public Benefit Corp. v., LLC asks whether “registration of [a] copyright claim has been made” in accordance to 17 U.S.C. § 411(a) when the copyright holder delivers the application and fees to the Copyright Office as opposed to only when the Copyright Office acts. This issue is split in different jurisdictions, and raises question as to whether a copyright owner need to register its claim with the Copyright Office before suing in federal court.  In addition, the patent case, Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA, Inc., raises the question of whether under the Leahy-Smith America Invents Act, confidential sales of an invention before it has a patent can make the invention unpatentable.

As a prior federal judge on the D.C. Circuit, Justice Kavanaugh has had opportunity to dip his toes in a small track record of royalty cases. How Kavanaugh decided these cases could foreshadow how he might rule on the bench in respect to patent law and more importantly, on issues involving the PTAB. Back in 2015, Kavanaugh joined the majority opinion of Settling Devotional Claimants v. Copyright Royalty Board, which affirmed the Copyright Royalty Judges’ error in admitting testimony that was unfavorable to the claimant’s cause was harmless, and criticized those judges for violations of the Administrative Procedures Act (APA). Today, Justice Kavanaugh in view of the principles as applied to the PTAB would likely critique the PTAB procedures. Especially since the Administrative Procedure Act would show that the PTAB is faulty.

Kavanaugh’s other encounter was a concurrence in SoundExchange, Inc. v. Librarian of Congress. Taking the notion that the Copyright Royalty Board Judges should be confirmed by the U.S. Senate because they’re principal officers of the government, he wrote:

As this case demonstrates, billions of dollars and the fates of entire industries can ride on the Copyright Royalty Board’s decisions. The Board thus exercises expansive executive authority analogous to that of, for example, FERC, the FCC, the NLRB, and the SEC. But unlike the members of those similarly powerful agencies, since 2004 Copyright Royalty Board members have not been nominated by the President and confirmed by the Senate…

The new statutory structure raises a serious constitutional issue. Under the Appointments Clause, principal officers of the United States must be nominated by the President and confirmed by the Senate. U.S. CONST. art. II, § 2, cl. 2. Copyright Royalty Board members plainly are officers of the United States. And they appear to be principal officers — not inferior officers — because they are not removable at will and their decisions regarding royalty rates apparently are not reversible by the Librarian of Congress or any other Executive Branch official.

What Kavanagh has explained could also hold true to PTAB judges, who in their administrative power are not nominated by the president nor are they confirmed by the Senate. Thus, it seems that Kavanaugh could be persuaded that the appointment of PTAB judges is unconstitutional. Especially given Kavanaugh’s dissent in Grocery Manufacturers Association v. Environmental Protection Agency, critiqued the EPA’s attempt to “weave ambiguity out of clarity in the statutory text” in an attempt to “try to get around the text of the statute.” Going forth it will be worthwhile to watch Kavanaugh’s preference of the Congressional statute as the Supreme Court considers upcoming cases. st Table 6