Thursday, 2 February 2017

Trump's Nomination of Neil Gorsuch and Intellectual Property

Recently, President Donald Trump nominated Neil Gorsuch of the U.S. Court of Appeals for the 10th Circuit to the U.S. Supreme Court.  Many have expressed disappointment at the nomination because of his close comparison to the late Associate Justice Antonin Scalia, but it certainly could have been worse to some.  Interestingly, BuzzFeed discusses a survey which finds that based on citations to Scalia opinions there is one justice who is supposedly closer to Scalia of the group considered by Trump: Merrick Garland.  Yes, Merrick Garland, who was former President Obama’s pick. 

What of Neil Gorsuch’s impact on IP should he be confirmed?  There’s some speculation and some have reported that we don’t have enough information.  Interestingly, the Congressional Research Service (CRS) released an initial report yesterday (February 1, 2017) on Judge Gorsuch.  On what area may he have the most impact on IP: his views on executive power and administrative law.  Judge Gorsuch has apparently criticized the Chevron doctrine which essentially provides that courts should provide deference to an agency’s interpretation of law.  The CRS notes:

Nonetheless, at least in one area of considerable congressional interest, Judge Gorsuch’s views on the law could be seen to be quite distinct from those of Justice Scalia: administrative law. For much of his career on the bench, Justice Scalia was a proponent of Chevron deference, the doctrine that when statutory language is ambiguous or silent on an issue, federal courts should defer to an agency’s reasonable interpretation of a statute it administers. He argued that the doctrine operated as a clear, bright-line rule against which Congress could legislate. In contrast, Judge Gorsuch, in a concurring opinion in Gutierrez-Brizuela v. Lynch, argued that Chevron and its progeny allow “executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.” In so writing, Judge Gorsuch suggested that the Supreme Court should reconsider Chevron, an action which, if taken by the Court, could upend decades of administrative law and potentially alter the role of Congress in drafting laws for implementation by administrative agencies.

Overturning Chevron could move some power from the United States Patent and Trademark Office back to the U.S. Court of Appeals for the Federal Circuit—think Couzzo and the broadest reasonable interpretation standard.  Law Professor Jonathan Turley at George Washington University Law School has been one of the loudest critics of executive overreach—including excesses in the George W. Bush and Obama administrations.  (Hat tip to my colleague, Professor John Sims, for the reference to the CRS report). 

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