Amicus briefs shape intellectual property law

Craig Metcalf, R. Shawn Gunnarson

As the value of intellectual property rights has skyrocketed, the law governing ownership and enforcement of those rights has grown in importance as well. Last term the Supreme Court decided no fewer than seven major IP cases — nearly 10 percent of its docket. Some cases addressed technical patent law issues such as inducement to infringe and definiteness of patent claims. In other cases, the Court decided what technology is subject to patent protection, such as in Alice v. CLS Bank and Association for Molecular Pathology v. Myriad Genetics, Inc. (decided in 2013). In other cases, the Court’s decision determined the future of an entire industry: American Broadcasting Cos. Inc. v. Aereo Inc. held that Aereo’s retransmission of television programing constituted a copyright infringement, essentially terminating the business model.

The Supreme Court’s active engagement in IP matters is comparatively new. During the first decades following its creation, the U.S. Court of Appeals for the Federal Circuit in 1982 almost always had the final word on intellectual property law. As the economic value of intellectual property rights has exploded, the Supreme Court has intervened in Federal Circuit cases more and more — often to reverse the court of appeals. Where a Supreme Court case on intellectual property used to occur only once every few years, IP issues now make up a sizeable portion of the court’s caseload.

These trends mean organizations of all kinds are seeking ways to influence IP policy in judicial proceedings as well as in legislative lobbying. One tool of IP policy that is becoming a regular feature of high-profile IP cases is the filing of amicus briefs. Amicus curiae, or friend-of-the-court, briefs are filed by a party who is not directly involved in the litigation. Amicus briefs offer third parties an opportunity to bring before the court arguments and implications that a legal dispute raises for people and organizations besides the parties themselves. During the past year alone,amicus briefs were filed in Supreme Court IP cases by state and federal governments, chambers of commerce, legal organizations such as the American Bar Association (ABA) and American Intellectual Property Law Association (AIPLA), industry organizations, individuals, and major corporations such as Google, Amazon, Facebook, Microsoft, Oracle and Micron.

Friend-of-the court briefs make good sense as a tool of influencing IP policy. They are especially useful in informing and persuading appellate courts, whose tendency is to focus on questions of law, unmixed with factual considerations unique to a particular case. A party filing an amicusbrief can discuss the legal and policy effects of the case without the need to delve into factual disputes that often consume the attention of trial courts. Contests over broad principles of IP policy and statutory interpretation mean IP cases before appellate courts often hold the potential of affecting business operations across the country even when a company is not involved in a particular case. Friend-of-the-court briefs offer an opportunity to inform the court of legal arguments or practical implications the parties might not know or simply overlook. A well-craftedamicus brief gives the court a broader perspective when deciding cases that set national IP policy.

Amicus briefs have become an established part of sophisticated litigation strategy. During the past two decades amicus practice has steadily grown at the U.S. Supreme Court level. Major decisions involving constitutional and statutory issues, such as affirmative action, class actions, and environmental regulation, invariably attract large numbers of amicus briefs. Now, intellectual property has been added to the list, as last year’s Supreme Court briefs by Google, Amazon, Facebook and other powerhouse companies demonstrates. Similar trends are noticeable at the Federal Circuit, too. Its IP cases are deciding novel issues with real-world business implications for many industries. Congressional lawmaking has created new questions of statutory interpretation especially for patent litigation and it is clear amicus briefs are having an impact on how the Federal Circuit decides these issues.

In short, friend-of-the-court briefs offer an important, even an irreplaceable, means of shaping judicial decisions that will determine how many businesses establish and defend their intellectual property rights. As such, corporate counsel ought to consider participating in significant IP litigation as an amicus whenever appropriate opportunities arise.

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