Kavanaugh’s effect on Intellectual Property in the Supreme Court


With the potential advent of Judge Brett Kavanaugh’s confirmation to the Supreme Court of the United States, most debate has centered on how Judge Kavanaugh has ruled on key social issues such as abortion and presidential limitations. However, an issue overlooked at this point is the impact the potential Justice could have in the Intellectual Property (“IP”) field. The Supreme Court is already slated to listen to two IP cases in their 2018-2019 term.[1]

If confirmed, Kavanaugh would fill the seat left empty by Justice Anthony Kennedy. Unlike most upcoming justices who do not really have a record with intellectual property matters, Judge Kavanaugh has a record of IP decisions that provides insight as to how he may rule if he is confirmed. Judge Kavanaugh has served 12 years in the United States Court of Appeals for the D.C. Circuit where he has weighed on copyright issues. [2] The cases in which Judge Kavanaugh has given his opinion on have involved the Copyright Royalty Board, particularly related to the Board’s administrative power and decision-making. Given that the Copyright Royalty Board has similarities in structure and function to the Patent and Trademark Appeals Board (“PTAB”), Judge Kavanaugh’s views could be important if patent owners manage to muster another challenge to the constitutionality of the PTAB.

D.C. Circuit Rulings:

In Soundexchange, Inc. v. Librarian of Congress[3], Judge Kavanaugh joined the majority affirming the copyrights board’s rates for songs that are played on satellite radio stations, but he also wrote a small concurring opinion suggesting the copyright board could be unconstitutional. Judge Kavanaugh’s reasoning was the copyright board members should be confirmed by the Senate since they are principle officers of the government.

Later in Settling Devotional Claimants v. Copyright Royalty Bd.[4], Judge Kavanaugh sided with the majority in criticizing the Royalty Board’s judges for violating the Administrative Procedures Act by arbitrarily setting rates.

Given Judge Kavanaugh’s inclinations, if another constitutional challenge were to take place, the PTAB might be in shakier grounds considering the previous ruling was 7-2 instead of usual unanimous rulings the court often gives with patent cases.

Supreme Court’s Rulings:

Even if Judge Kavanaugh’s prior decisions hint at how he could rule if confirmed, he would be one of nine justices who single handily could not change the trends of the Supreme Court. In pure patent cases involving patent eligibility the Supreme Court has voted unanimously over the past eight years to limit the scope of allowable claims.[5] The Supreme Court has also ruled unanimously when it comes to infringement regardless if it sides with the patent holder or the alleged infringer.[6] Even if Judge Kavanaugh were to write a dissenting opinion regarding allowable matter or infringement, the Supreme Court is unlikely to change course meaning that decisions coming out would remain consistent.


It is highly unlikely that Judge Kavanaugh will likely swing the Court on any patent issues aside from a potential constitutional challenge of the PTAB. When it comes to Copyrights and Trademarks, the impact of Judge Kavanaugh remains to be seen.

At Rao DeBoer Osterrieder, our goal is to help you understand complex aspects of IP as they apply to your business. As intellectual property strategies vary greatly between industries or even businesses, it is our aim to learn your business goals and function as an in-house IP attorney would for you. There are a number of strategies even after a patent is allowed that can help increase your bottom line.

Contact us so we can tailor a plan to your individual business goals and needs. Make your Intellectual Property effectively work for you.

We look forward to speaking with you!

© 2018 Jorge Zamora

The views expressed in this article are those of the author and do not reflect the views of Rao DeBoer Osterrieder, PLLC, or any of its clients. All rights reserved.

[1] One case will involve the clarification of the “on-sale bar,” and the other will involve the clarification of the copyright registration requirement before someone is able to sue in federal court.

[2] Judge Kavanaugh has not been exposed to any patent cases given these are handled exclusively by the United States Court of Appeals for the Federal Circuit.

[3] 571 F.3d 1220 (2009).

[4] Case No. 13-1276, D.C. Cir. (2015).

[5] Bilski v. Kappos, 561 U.S. 593 (2010); Prometheus v. Mayo, 566 U.S. 66 (2012); Association of Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576 (2013).

[6] Limelight Networks v. Akami Technologies, 134 S.Ct. 2111 (2014); Bowman v. Monsanto, 569 U.S. 278.