{"id":5788,"date":"2018-12-21T11:21:41","date_gmt":"2018-12-21T15:21:41","guid":{"rendered":"http:\/\/ncjolt.org\/?p=5788"},"modified":"2020-06-04T20:52:29","modified_gmt":"2020-06-04T20:52:29","slug":"how-will-kavanaugh-vote-on-issues-i-care-about-a-quick-look-at-his-ip-track-record","status":"publish","type":"post","link":"https:\/\/journals.law.unc.edu\/ncjolt\/blogs\/how-will-kavanaugh-vote-on-issues-i-care-about-a-quick-look-at-his-ip-track-record\/","title":{"rendered":"How Will Kavanaugh Vote on Issues I Care About? A Quick Look at His IP Track Record."},"content":{"rendered":"\n

For most, an introduction to Justice\nKavanaugh would be redundant. However, for the few interested in intellectual\nproperty, Kavanaugh\u2019s confirmation comes timely to two upcoming intellectual property cases.<\/a> First, Fourth Estate Public Benefit Corp. v.\nWall-Street.com, LLC<\/em><\/a> asks\nwhether \u201cregistration of [a] copyright claim has been made\u201d in accordance to 17\nU.S.C. \u00a7 411(a) when the copyright holder delivers the application and fees to\nthe Copyright Office as opposed to only when the Copyright Office acts. This\nissue is split in different jurisdictions, and raises question as to whether a\ncopyright owner need to register its claim with the Copyright Office before\nsuing in federal court.  In addition, the patent case, Helsinn Healthcare S.A. v. Teva\nPharmaceuticals USA, Inc.<\/em><\/a>, raises the question\nof whether under the Leahy-Smith America Invents Act, confidential sales of an\ninvention before it has a patent can make the invention unpatentable.<\/p>\n\n\n

As a prior federal judge on the D.C. Circuit,\nJustice Kavanaugh has had opportunity to dip his toes in a small track record<\/a> of royalty cases. How Kavanaugh decided these\ncases could foreshadow how he might rule on the bench in respect to patent law\nand more importantly, on issues involving the PTAB. Back in 2015, Kavanaugh\njoined the majority opinion of Settling Devotional Claimants v.\nCopyright Royalty Board<\/em><\/a>,<\/em> which affirmed the Copyright Royalty Judges\u2019 error in\nadmitting testimony that was unfavorable to the claimant\u2019s cause was harmless,\nand criticized those judges for violations of the Administrative Procedures Act\n(APA). Today, Justice Kavanaugh in view of the principles as applied to the\nPTAB would likely critique the PTAB procedures. Especially since the Administrative Procedure Act would show that the\nPTAB is faulty.<\/a> <\/p>\n\n\n

Kavanaugh\u2019s other encounter was a concurrence\nin SoundExchange, Inc. v. Librarian of Congress<\/em><\/a>. Taking the\nnotion that the Copyright Royalty Board Judges should be confirmed by the U.S.\nSenate because they\u2019re principal officers of the government, he wrote:<\/a> <\/p>\n\n\n

As this case\ndemonstrates, billions of dollars and the fates of entire industries can ride\non the Copyright Royalty Board\u2019s decisions. The Board thus exercises expansive\nexecutive authority analogous to that of, for example, FERC, the FCC, the NLRB,\nand the SEC. But unlike the members of those similarly powerful agencies, since\n2004 Copyright Royalty Board members have not been nominated by the President\nand confirmed by the Senate\u2026<\/p>\n\n\n

The new\nstatutory structure raises a serious constitutional issue. Under the\nAppointments Clause, principal officers of the United States must be nominated\nby the President and confirmed by the Senate. U.S. CONST. art. II, \u00a7 2, cl. 2.\nCopyright Royalty Board members plainly are officers of the United States. And\nthey appear to be principal officers \u2014 not inferior officers \u2014 because they are\nnot removable at will and their decisions regarding royalty rates apparently\nare not reversible by the Librarian of Congress or any other Executive Branch\nofficial.<\/p>\n\n\n

What Kavanagh has explained\ncould also hold true to PTAB judges, who in their administrative power are not\nnominated by the president nor are they confirmed by the Senate. Thus,\nit seems that Kavanaugh could be persuaded that the appointment of PTAB judges\nis unconstitutional.<\/a> Especially given Kavanaugh\u2019s\ndissent in Grocery Manufacturers Association v. Environmental Protection Agency<\/a><\/em>, critiqued the EPA\u2019s\nattempt to \u201cweave ambiguity out of clarity in the statutory text\u201d in an attempt\nto \u201ctry to get around the text of the statute.\u201d Going forth it will be\nworthwhile to watch Kavanaugh\u2019s preference of the Congressional\nstatute as the Supreme Court<\/a> considers upcoming cases.\nst Table 6 <\/p>\n","protected":false},"excerpt":{"rendered":"

For most, an introduction to Justice Kavanaugh would be redundant. However, for the few interested in intellectual property, Kavanaugh\u2019s confirmation comes timely to two upcoming intellectual property cases. First, Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC asks whether \u201cregistration of [a] copyright claim has been made\u201d in accordance to 17 U.S.C. \u00a7 411(a) when the …<\/a><\/p>\n","protected":false},"author":1,"featured_media":5789,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":[],"categories":[51],"tags":[],"_links":{"self":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/5788"}],"collection":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/comments?post=5788"}],"version-history":[{"count":1,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/5788\/revisions"}],"predecessor-version":[{"id":6901,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/5788\/revisions\/6901"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/media\/5789"}],"wp:attachment":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/media?parent=5788"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/categories?post=5788"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/tags?post=5788"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}