Legal Commentary

Thank you to Dan for inviting me back to Prawfsblawg.  The generosity of this open forum is greatly appreciated.  

I'm an intellectual property prawf who specializes in patent law, at the University of the Pacific McGeorge School of Law.

As May begins, like many others I am working through piles of papers that I had "planned to read" with the best of intentions.  The upcoming Supreme Court nomination being a foremost concern, one of the articles that got me to stop cleaning is Ideology and Exceptionalism in Intellectual Property, by Matthew Sag, Tonja Jacobi and Maxim Sytch.  This is a timely and engaged empirical look at the issue of judicial ideology and ruling in intellectual property cases. As the article notes, IP questions touch on notions of property, government regulation, freedom of competition and freedom of speech.  One of the conclusions reached in the case is that "judicial ideology has a statistically significant effect on the outcome of IP cases, but at a statistically lower levels that non-IP Supreme Court cases."  (at 847).  This study is one of a handful that considers how the Court interacts with the field.  

Certainly over the past few years the Court has considered a number of important intellectual property cases, including the Bilski case (currently pending decision), which concerns the central issue of patentable subject matter.  Just as certainly, there are a number of pressing problems that might be solved with sufficient care and attention to ideas and exploration, the fruits of which are the subject of IP law.  I cannot help but wonder whether there will be consideration of the Supreme Court nominee's views of invention, authorship or innovation in the upcoming confirmation process.