Strengthening protection means making it easier to acquire IPR, broadening the scope of protection, and strengthening enforcement.
Mandel 17 – Dean & Peter J. Liacouras Professor of Law, Temple University.
Gregory N. Mandel, “Institutional Fracture in Intellectual Property Law: The Supreme Court Versus Congress,” Minnesota Law Review, vol. 102, 2017, pp. 804, https://www.minnesotalawreview.org/wp-content/uploads/2018/01/Mandel_MLR.pdf.
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.