The Supreme Court and Congress disagree – Supreme Court has historically gone against stronger IP

Congress and the Supreme Court have been significantly at odds over intellectual property law throughout the early twenty-first century. This institutional fracture is revealed here in an original dataset comprising every Supreme Court decision and statute passed by Congress concerning intellectual property law from 2002 to 2016. Though the divergence between legislative and judicial action has largely slipped below the radar, it speaks volumes about the contemporary political economy of intellectual property law. Analysis of this legal activity also raises questions concerning interbranch separation of powers and majoritarian democracy, questions that spread well beyond intellectual property.

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.

Differentiating this legislative and judicial action based on intellectual property subfield exposes additional nuance. While Congress has tended to strengthen intellectual property protection in patent, copyright, and trademark law, the Supreme Court has been generally antagonistic toward stronger patent and trademark rights, but highly receptive to increasing copyright protection. This differentiation indicates that the Supreme Court, at least, does not appear to view intellectual property law as a single, unified field.