“Strengthening” must be a net effect and must affect an IP owner. Decisions that affect both IP owners and opposing parties in equal amounts or merely regulate ownership among competing claimants don’t strengthen.

Gregory N. Mandel, “Institutional Fracture in Intellectual Property Law: The Supreme Court Versus Congress,” Minnesota Law Review, vol. 102, 2017, pp. 809-810, https://www.minnesotalawreview.org/wp-content/uploads/2018/01/Mandel_MLR.pdf.

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

[BEGIN FOOTNOTE 12] Consistent with the standard approach applied in analyzing the ideological direction of Supreme Court decisions, whether a given decision strengthened or weakened intellectual property rights was determined based on the net effect on intellectual property law with respect to the issue at hand, not based simply on whether there was a change from the status quo. See, e.g., Lee Epstein & Andrew D. Martin, Does Public Opinion Influence the Supreme Court? Possibly Yes (But We’re Not Sure Why), 13 U. PA. J. CONST. L. 263, 272 (2010) (applying this methodology to code decisions as liberal versus conservative); Isaac Unah et al., U.S. Supreme Court Justices and Public Mood, 30 J.L. & POL. 293, 307–10 (2015) (same); The Supreme Court Database, WASH. U. L. SCH., supremecourtdatabase.org (last visited Nov. 5, 2017) (same). Thus, Eldred v. Ashcroft, 537 U.S. 186 (2003), is coded as strengthening intellectual property rights because it upheld the Copyright Term Extension Act against a constitutional challenge. As the statutory name implies, the Copyright Term Extension Act extended owner ’s copyright terms. Though upholding the law effectively maintained the status quo, the Court’s decision on the issue before it favored greater protection. 13. 135 [END FOOTNOTE 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 favor of patentees and other times in favor of alleged infringers.16

[BEGIN FOOTNOTE 16] In a similar vein, Board of Trustees of the Leland Stanford Junior University v. Roche Molecular Systems, Inc. concerned whether an employee of a university receiving government funding could assign the rights in an invention to a third party without the university’s consent. 563 U.S. 776, 776–79 (2011). Whether the employee or the university prevailed, the substance and scope of the owner ’s patent rights would be the same; the case was simply a debate among competing owners. Id. at 783. [END FOOTNOTE 16]

Decisions that neither strengthened nor weakened intellectual property rights were classified as neutral.