In a post here a few months ago, I noted that a series of dissents in intellectual property cases over the past decade had established Justice Stephen Breyer “as one of the Supreme Court’s leading intellectual property law skeptics, along with now-retired Justice John Paul Stevens.”  “Not coincidentally,” I added, breyer“Justices Breyer and Stevens were also the Court’s most sophisticated members in the area of antitrust.” In light of his majority opinion this year in Kirtsaeng v. Wiley & Sons, which placed a significant limitation on the copyright law “first sale” doctrine, I asked whether we have perhaps “reached an inflection point where Justice Breyer is no longer just the Court’s leading skeptic on IP protection, but where he will lead a major retrenchment.” Today’s opinion in a case in which patent law and antitrust law meet like an irresistible force and an immovable object — FTC v. Actavis, Inc. — with Justice Breyer again writing for the majority, strongly suggests  that the answer to my rhetorical question is an emphatic “yes.”



In a post a while back, I quoted from Justice Stephen Breyer’s dissents in two important copyright cases of the past decade, Eldred v. Ashcroft (2003), which breyerupheld the copyright term extensions adopted by Congress in the Sony Bono Memorial Copyright Term Extension Act of 1998, and Golan v. Holder (2012), which upheld an act of Congress that restored copyright protection to certain old foreign works which, for one reason or another, had previously fallen into the public domain in the United States.  In those dissents and others, Justice Breyer had established himself as one of the Supreme Court’s leading intellectual property law skeptics, along with now-retired Justice John Paul Stevens.  (Not coincidentally, I think, Justices Breyer and Stevens were also the Court’s most sophisticated members in the area of antitrust.)  Last week, however, Justice Breyer delivered the majority opinion for the Court in a contentious copyright case, Kirtsaeng v. Wiley & Sons, coming down against the copyright holder on the issue of whether the “first sale” doctrine applies where the first sale of a copyrighted item occurred abroad.  Justice Breyer conceded that the Constitution gives copyright owners a limited right to exclude competition.  “But,” he went on, “the Constitution’s language nowhere suggests that its limited exclusive right should include a right to divide markets or a concomitant right to charge different purchasers different prices for the same book, say to increase or to maximize gain.”

Breyer was also the author of last term’s unanimous and rather broadly drawn opinion in Mayo Collaborative Services v. Prometheus Labs, which held that a method of calibrating dosages of drugs used to treat autoimmune disease, which relied upon measurement of metobolites found in the bloodstream upon administration of the drugs, was an unpatentable law of nature.  Have we reached an inflection point where Justice Breyer is no longer just the Court’s leading skeptic on IP protection, but where he will lead a major retrenchment?


The over-arching economic problem that dogs all of American patent and copyright law is one of demarcation—when is the marginal utility of  an incentive provided to one innovator “to promote progress in science and the useful arts” outweighed by the burden it places on the creativity and economic freedom of everyone else and is therefore counterproductive?  In The Knockoff Economy: How Imitation Sparks Innovation (Oxford Univ. Press), Law Professors Kal Raustiala of UCLA and Christopher Sprigman of the University of Virginia attack this problem from a novel angle, examining  fields of creative endeavor that seemingly flourish in the absence of patent or copyright protection and in the face of rampant and easy copying—fields such as couture fashion, haute cuisine, stand-up comedy, high finance, and professional (and big-time college) football.  Their approach, more anecdotal and even dishy than empirically rigorous, results in a study that is timely, enjoyable, original, and informative, though it falls short of forming a rock-solid foundation for the broad generalizations about IP law and its application to other fields that the authors seek to draw.



The epic Apple-Samsung patent dispute is now on trial and, justly, generating headlines in the popular press.  In particular, it has been widely reported that the Court  has prevented Samsung from introducing clips from Stanley Kubrick’s 1968 classic 2001: A Space Odyssey in which astronauts Frank Poole and Dave Bowman are looking at tablets that have an uncanny resemblance to iPads.   Why, you might ask, would any lawyer think that a fictional device could be relevant in a high-tech patent case?  And if it could be, why is the judge being such a killjoy?  Answers after the jump.



For more than a generation, learned monographs have poured forth from constitutional theorists who bring insights from such diverse realms as literary criticism, philosophy, linguistics, and political economy to bear on the problem of finding consistent principles for deciding constitutional disputes.  In Rethinking Patent Law, Professor Robin Feldman of the University of California’s Hastings College of Law applies similar analytic tools to patent law.  Like the constitutional theorists, Professor Feldman succeeds in illuminating aspects of the subject area that are seldom noticed by judges, legislators, and practitioners, and offers  ideas that could be useful in deciding some of the hardest cases. But also like the constitutional theorists, she fails to offer a theory having general applicability over a broad swath of her subject area. (more…)


After chewing on a dispute between Wrigley and Cadbury over  patents covering their competing “ice” gum products for more than eight years, the courts have declared a draw.



No one sweated the small  details of consumer electronics design more than Steve Jobs.  Today’s ruling by the United States Court of Appeals for the Federal Circuit, in a patent dispute between Apple and Samsung, must have him throwing quite a fit, wherever he is.

Apple accused Samsung’s smart phones of infringing patents (pictured) covering the iconic ornamental appearance of the iPhone, as well as a patent covering its handy touchscreen display “bounce back” feature.  Apple sought a preliminary injunction against Samsung’s importation and sale of its competing phones.  A federal district court in California denied that request, and this appeal followed.


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