Strengthen---Scope/Process/Remedies (SPR)

Mandel ’18 [Gregory N.; January; Dean & Peter J. Liacouras Professor of Law, Temple University; Minnesota Law Review, “Institutional Fracture in Intellectual Property Law: The Supreme Court Versus Congress,” 102:803]

I constructed a database of every Supreme Court opinion implicating patent, copyright, trademark, or trade secret issues from July 1, 2002 through June 30, 2016. The database entries are the Supreme Court’s final decision in each matter; certiorari dispositions are not included. I removed from the database any cases that, though referring to intellectual property law, did not actually decide any intellectual property issue. For example, Illinois Tool Works, Inc. v. Independent Ink, Inc. concerned whether there should be a presumption of market power under antitrust law where the product in question is subject to patent protection.7 Though this case bears a relation to patent protection, its result did not turn on or affect patent law. The final Supreme Court database includes forty-four intellectual property decisions and is summarized in Appendix A. Using similar methods, I developed a database of every federal statute concerning patent, copyright, trademark, or trade secret rights during the same time period. As with the Supreme Court data, I removed statutes that did not actually affect patent, copyright, trademark, or trade secret doctrine. For example, the Lanham Act is the primary statute providing for Federal trademark protection in the United States.8 Portions of the Lanham Act regulate nontrademark activities, such as false advertising.9 Legislation that affected only the false advertising portions of the Lanham Act was excluded from the database. The final dataset includes forty-three legislative entries for the pertinent period and is summarized in Appendix B.10 The following sections analyze the contours of intellectual property activity in these Supreme Court and congressional datasets.

A. SUPREME COURT DECISIONS

The primary variable for analysis is whether a given Supreme Court decision or legislative action strengthened or weakened intellectual property protection. Consistent with prior research 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

Strengthening IPR requires making protection stronger for the rights owner---it excludes making IPR more socially beneficial.

Mandel ’18 [Gregory N.; January; Dean & Peter J. Liacouras Professor of Law, Temple University; Minnesota Law Review, “Institutional Fracture in Intellectual Property Law: The Supreme Court Versus Congress,” 102:803]

Recent legislative and judicial actions concerning intellectual 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 substantive 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 opposite 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 extent of rights, two-thirds weakened protection.

Footnote 1

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.