US apex court sets record for intellectual property caseload

Written by Reuters | Updated: Feb 28 2014, 07:34am hrs
In a sign of the growing struggles that judges face applying old laws to new technology, the US Supreme Court this year is hearing the highest proportion of intellectual property cases in its history.

In the court's nine-month term ending in June, the justices will decide eight cases on intellectual property issues: six on patent law, two of which were argued on Wednesday, and two on copyright law.

That makes 11.4% of the 70 oral arguments the court is hearing this term, a marked uptick from six cases, or 7.7%, the previous session, according to a Reuters review of the cases.

The court heard three or four cases each of the previous three terms, according to data compiled by Edward Lee, a professor at Illinois Institute of Technology Chicago-Kent College of Law, and the court heard even fewer in the previous decade: two or three per term.

The number of IP cases is the most in a single term since the middle of the last century at a time when the court is hearing fewer cases.

Intellectual property law, which includes patents, copyright and trademarks, has been around for centuries, but in recent decades it has become increasingly important for US businesses, especially in globally competitive areas of the economy such as the technology industry.

The rise in high court cases also has been fuelled by differences between rulings by the justices and the findings of a specialized Washington-based appeals court, which handles the nation's patent cases and has failed to reach consensus on some key issues.

Often filled with jargon and technological terms that can make issues seem obscure, the IP cases can have wide-ranging, real world effects.

This term alone, the court is due to decide the potentially broad question of when software can be patented. In a copyright case, the court will weigh the fate of a startup company that allows people to watch broadcast television on computers and mobile devices.

This is absolutely a blockbuster year, said Mark Lemley, a professor at Stanford Law School.

Under Chief Justice John Roberts, appointed by President George W Bush in 2005, the court has increasingly stepped in to confront unprecedented complexities of emerging technology.

The increase in IP cases is evidence also of the Roberts court's keen interest in business cases. Unlike other business cases on issues ranging from class actions to employment law, however, on these the justices seem less ideologically split.

Of the 23 IP cases decided from 2005 to 2013, a total of 15, 12 of them patent cases, were decided without a single dissenting vote, a Reuters review of the rulings found.

Legal experts are wary of making broad pronouncements about where the court stands on IP issues, saying the court approaches the subject on a case-by-case basis and prefers to rule narrowly.

Last term, for example, the court took the middle ground when faced with the question of whether human genes can be patented. On a unanimous vote, the court prohibited patents for naturally occurring human genes but allowed legal protections for synthetically produced genetic material.

Reflecting the complexity of the issues, Justice Antonin Scalia acknowledged the limits of his scientific knowledge in a separate opinion agreeing with the majority, writing, I am unable to affirm those details on my own knowledge or even my own belief.