Justice Kennedy’s retirement may impact IP cases in long term
The retirement of Justice Anthony Kennedy and the addition of a new US Supreme Court Justice is unlikely to immediately change the court’s standing on IP issues, although it may have an impact in the longer run, according to IP lawyers.
The news that Justice Anthony Kennedy of the Supreme Court will step down means that US President Donald Trump will need to nominate a replacement.
Last year, Trump successfully nominated Justice Neil Gorsuch to the Supreme Court following the death of Antonin Scalia in 2016.
“The departure of Justice Kennedy, and his possible replacement with a more conservative justice, is unlikely to change the Supreme Court much in the short term with respect to IP issues,” said Taylor Evans, partner at Hogan Lovells.
He said that while the justices often have split opinions on ideological and social issues, the same does not seem to apply to IP-related cases.
Evans added: “Some, however, view Kennedy as a consensus builder on IP issues, and more conservative justices, such as Gorsuch, have come out in the minority on some recent IP cases, including Oil States and WesternGeco. Thus, a longer term shift in the court on IP issues is possible without Kennedy.”
Mark Simpson, chair of the IP practice group at Saul Ewing Arnstein & Lehr, said that Justice Kennedy is “pro-business” and has delivered several important patent cases in from 2000 to 2010, including Festo Corp v Kogyo Kabushiki and KSR International Co v Teleflex Inc.
Both of these cases examined the relationship between the doctrine of equivalents and the doctrine of prosecution history estoppel in US patent law.
“Like so many IP cases that make it to the high court, the decisions were all unanimous, so the fact that he authored them may say more about his understanding of and ability to write about technically complex issues than it does about him having some philosophical leanings in this specialised area of the law,” commented Simpson.
He concluded that it is likely that the new justice will view IP protection favourably.
Simpson explained: “Given that the President fancies himself a businessman rather than a politician, the new justice will almost certainly be another pro-business jurist which would typically mean that he or she will also lean towards strong IP protection for businesses.”
Kennedy, who was nominated to the Supreme Court by former US president Ronald Reagan, will remain in his position until July 31. He will then assume senior status with the Supreme Court.
Justice Ruth Bader Ginsburg said she “will miss the pleasure of his company at our conference table” and “his helpful suggestions on circulations opinions".
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