3 Quotes From Judge Kavanaugh’s IP Opinions

At best, we can see that Judge Kavanaugh does not betray any obvious animus to patent rights.

(Photo by MANDEL NGAN/AFP/Getty Images)

Since the announcement of the Honorable Brett Kavanaugh’s nomination for Justice Kennedy’s seat on the U.S. Supreme Court, numerous articles reviewing his judicial approach to intellectual property cases have been released — including a learned analysis on these very pages. The impetus for articles of this type is clear. The public is looking for insight into how Judge Kavanaugh has approached intellectual property matters in the past, in the hopes of being able to prognosticate on how he might rule on such cases once seated on the Supreme Court. While numerous articles have noted that the limited IP workload of the D.C. Circuit has made divining Kavanaugh’s approach to IP issues a bit more difficult, there is still enough of a record of his decisions in IP cases to warrant further study.

Rather than focus on his record in toto, or try and guess based on his judicial philosophy which way he might lean in future IP disputes, for purposes of this column, I’d like to take a different analytical approach. My preference is to focus on actual quotes from Kavanaugh-drafted opinions in IP cases. More particularly, I would like to focus on three quotes from three different opinions, in order to get a better sense of Judge Kavanaugh’s approach to deciding IP disputes.

To start, however, it is important to recognize that his perch on the D.C. Circuit often forces him to look at IP issues in a broader context than your typical appeal from a district court IP dispute involving two competitors, for example. One reason, of course, is that government agencies are frequent litigants in disputes ending up before the D.C. Circuit.  We can hope that the D.C. Circuit’s heavy workload dealing with government agencies was good preparation for Judge Kavanaugh’s potential future role in handling IP cases. Especially in the current climate of increased agency filings by IP litigants (e.g., IPRs in patent cases,) which has led to a mushrooming of appeals to the Federal Circuit from agency determinations.

For patent litigators in particular, the key question about Judge Kavanaugh is how he might approach the two big issues in patent law: patent eligibility/Alice and the PTAB/IPR regime. On the former, the best we might be able to do is note that as an avowed constitutionalist, Kavanaugh maybe skeptical of judicially crafted exceptions to what was long considered an expansive statutory and legal framework. One which traditionally assumed that a patent encompassed patent-eligible subject matter unless shown otherwise. At the same time, Alice (like many of the Supreme Court’s patent opinions) was a unanimous decision, so even if Kavanaugh has misgivings about the application of the eligibility test proposed by Alice, it would seem unlikely that there would be much he could do to convince his colleagues that the decision is bad law and should be overturned if a case making that argument ever ended up before the Supreme Court.

The latter question — about how Kavanaugh might view the PTAB/IPRs — is more interesting. First, the recent decisions in SAS and Oil States were not unanimous, making Kavanaugh’s potential vote more important. Second, Kavanaugh’s long history of dealing with administrative law issues may suggest he will be a vocal voice in holding the PTAB to the same standards as adjudicatory panels in other federal agencies. Plus, his judicial record suggests he is not shy about considering the constitutionality of agency-based judicial activity — which may suggest he will at least be open to further constitutionality-based attacks on the IPR scheme.

On that last point, a quote from his concurrence in Sound Exchange v. Librarian of Congress is illustrative of both his willingness to make his voice heard on constitutionality grounds and to consider the role of agency-based “judges” through that lens. In that case, which dealt with the authority of members of the Copyright Board to set licensing rates, Kavanaugh writes “if the members of the Board are in fact principal officers, then the present means of appointing Board members is unconstitutional. But no party here has timely raised a constitutional objection.” Fearless expression of opinion, meet judicial restraint. More importantly, if Judge Kavanaugh sua sponte evinces a willingness to consider the constitutionality of a particular set of agency-level actors in copyright matters, it is safe to assume he will take a close look at the PTAB’s role in patent matters as well.

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Moreover, a second quote from a later Kavanaugh copyright opinion demonstrates another one of his traits — strict adherence to judicial restraint, coupled with a willingness to consider issues properly brought before him. Citing to his concurrence in Sound Exchange, Kavanaugh notes in RIAA v. Librarian of Congress: “RIAA has not raised a constitutional challenge to the method of appointment of the members of the Copyright Royalty Board.” Here again, Judge Kavanaugh shows that while he is committed to addressing the arguments before him, he is also not afraid to suggest that a constitutional challenge could have been raised against the agency’s adjudicative panel. The potential readthrough to the IPR context is evident, especially since desperate patent owners convinced that they did not receive a fair shake at the PTAB will likely continue to raise various and sundry challenges to the PTAB’s procedures.

Whether any of those issues make it up to the Supreme Court is of course an open question, as is Judge Kavanaugh’s approach to issues of that type in a patent context. In fact, since the Federal Circuit has jurisdiction over all patent appeals, it is not surprising that Judge Kavanaugh’s record on patent issues is sparse. Perhaps the best quote I was able to find from one of his opinions came from a recent privilege dispute in a case between pharmaceutical company Boehringer and the FTC. In his opinion on the privilege issues, Judge Kavanaugh stated that a “drug manufacturer that holds a patent has a market advantage. When a generic drug company challenges the validity of that patent, it threatens the patent holder’s monopoly.” Honestly, there is not much to read into this obvious restatement of the consequences of patent rights. At best, we can see that Judge Kavanaugh does not betray any obvious animus to patent rights. He even recognizes that a patent holder may have a “monopoly” — in pharma, at least. Whether he agrees that the ability to enjoin others is part and parcel of patent rights is an open question of course.

Ultimately, looking at Judge Kavanaugh’s quotes in IP matters is no substitute for hearing his views on such issues — if they arise during his confirmation hearings. But maybe that is for the best, especially when we weigh the potential value of having a skilled jurist comfortable with administrative law matters on a Supreme Court that is likely to continue to grapple with such issues in an IP context in the years to come. If confirmed, he promises to have plenty of opportunity to shape IP law going forward. Hopefully, he is asked by someone for his views on IP issues during the process.

Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.


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Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.