As the Senate hearings for Judge Amy Coney Barrett conclude, and as her confirmation looms nearly certain, I’ve been wondering where she falls on Intellectual Property (IP) issues. Turns out so have others.

An article posted on Bloomberg Law titled “Where Does Judge Barrett Fall on IP Issues” noted that Judge Barrett has only decided a small number of IP-related cases during her three years at the Seventh Circuit but has applied a textualist approach each time.  In reviewing her trademark and trade secret decisions where there was a clear result, the authors found that Judge Barrett has neither clearly favored intellectual property owners (siding with them three times) nor accused infringers (siding with them two times).  The takeaway from the authors is on textualism: “The U.S. Supreme Court has increasingly taken a textualist approach to intellectual property issues in recent years, and President Donald Trump’s nomination of Judge Amy Coney Barrett to the high court promises to continue that trend, if she is confirmed.”

34126235 - copyrightThe Copyright Alliance’s blog recently asked, “What Would Amy Coney Barrett’s Supreme Court Confirmation Mean for Copyright?”  The blog references two decisions the Supreme Court issued while Judge Barrett was clerking for the late Justice Antonin Scalia and also the judicial panels on which Judge Barrett has served that have decided cases involving copyright law.  The blog concludes that Judge Barrett has been exposed to “complex infringement disputes and important copyright doctrines that will influence her consideration of the critical copyright issues that come before the Supreme Court.”

IP issues do not appear to have been a focus of Judge Barrett’s confirmation hearings, though she did answer a few IP-related questions from Senator Thom Tillis, Chair of the Senate Intellectual Property Subcommittee, according to an IP Watchdog article summary.  When asked about patent eligibility decisions, Judge Barrett responded that “clarity in decision-making is always something that courts should strive for” and that “clarity is certainly a virtue in this context.”  The IP Watchdog, recognizing that patent law issues would not have come before Judge Barrett at the Seventh Circuit, concluded that these remarks “should sound a hopeful note to the ears of innovators.”  Later responding to Senator Tillis’ questions about copyright law and technology, Judge Barrett responded, “Most of the things you are identifying sound to me like matters of policy, so those seem like matters that are best addressed by the Legislature; the democratically elected body, not policy made by courts.” The IP Watchdog, noting that these comments likely do not provide insight into copyright activism from the bench, concluded that Judge Barrett believes “matters of policy are best addressed by Congress, as is intended by the Constitution.”

A change on the Supreme Court always yields questions about what direction the court will take on various issues.  Although not a focus to date, where the next Supreme Court justice lands on IP issues will inevitably matter in the years to come.