Strengthen protection of IPR = make IP acquisition easier, broaden scope of protection, or strengthen enforcement.

Recent legislative and judicial actions concerning intellec- tual property law reveal several stark trends. Congress has been remarkably hospitable to stronger intellectual property rights. Congress passed forty-three intellectual property laws during the time period in question. Of those that affected the substan- tive strength of intellectual property rights, over 80% made rights stronger.1 These laws made it easier to acquire intellectual property rights, broadened the scope of protection, and strengthened enforcement. The Supreme Court’s intellectual property jurisprudence, however, has moved largely in the oppo- site direction. The Court decided forty-four intellectual property cases from the October 2002–2003 Term through the October 2015–2016 Term, and of those that substantively affected the ex- tent of rights, two-thirds weakened protection.

1. The use of the terms “stronger” and “weaker” refers solely to the strength (or weakness) of intellectual property rights from the perspective of the intellectual property rights owner. These terms do not indicate that a given law is more or less socially beneficial.

Mandel 18 (Gregory N., Dean & Peter J. Liacouras Professor of Law, Temple University, “Institutional Fracture in Intellectual Property Law: The Supreme Court Versus Congress,” Minnesota Law Review, )

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This Article progresses in three parts. Part I develops and analyzes the Supreme Court and congressional legislation dataset. Every Supreme Court decision and every act of legislation by Congress concerning intellectual property law from 2002 to 2016 was coded by multiple independent analysts to classify it as strengthening, weakening, or being neutral with respect to intellectual property rights. Analysis of these data reveal that Congress has uniformly strengthened rights while the Supreme Court has primarily weakened them. Part II examines the rea- sons for this structure of intellectual property decision-making, and uncovers a somewhat puzzling result: the Supreme Court appears more responsive than Congress to popular opinion con- cerning intellectual property rights. Part III explores the impli- cations of these results for the future of intellectual property law and its ability to serve desired objectives. The findings have sig- nificant implications beyond intellectual property law for the balance of power between the Legislative and Judicial Branches, and for how democracy functions in the United States.

Mandel 18 (Gregory N., Dean & Peter J. Liacouras Professor of Law, Temple University, “Institutional Fracture in Intellectual Property Law: The Supreme Court Versus Congress,” Minnesota Law Review, )

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The primary variable for analysis is whether a given Supreme Court decision or legislative action strengthened or weakened intellectual property protection. Consistent with prior re- search in this context, strengthened versus weakened refers to the extent of protection afforded to the intellectual property rights owner.11 Accordingly, Supreme Court decisions that make it easier to acquire intellectual property rights; broaden the scope of intellectual property protection; make it easier to prove infringement; or strengthen remedies for infringement are all considered to strengthen intellectual property protection. Decisions that have the opposite effects weaken protection.12

A number of the Supreme Court decisions are neutral in this regard. Neutral coding can occur for multiple reasons, such as procedural decisions that affect both intellectual property owners and opposing parties in equivalent manners, or decisions that regulate ownership among competing claimants. An example of the former type of neutral decision is Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc. 13 This case clarified the proper standard of appellate review for a district court’s factual findings made in patent claim construction.14 The Court held that the standard of review is clear error,15 a decision that neither strengthened nor weakened intellectual property owner rights because sometimes district courts construe patent claims in fa- vor of patentees and other times in favor of alleged infringers.16 Decisions that neither strengthened nor weakened intellectual property rights were classified as neutral.

Three analysts applied this methodology to independently code each Supreme Court intellectual property decision. There was full coder agreement on approximately 90% of the cases. Where there was not agreement, the coders met for discussion and were able to reach a unanimous agreement in each case.