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Will the Death of Justice Scalia Change Patent Law? Probably Not

Scalia has died.
Patent cases are pending
Don’t see much impact

The unexpected death of Supreme Court Justice Antonin Scalia is expected to have a major impact on the court. Even if the Republican-held Senate blocks a liberal replacement for the conservative justice, the loss of one of the reliable conservative votes on issues that split 5-4 along party lines is significant. If the court splits 4-4, whatever the lower court decided stands, including “liberal” decisions that might otherwise have been overturned.

Justice Scalia had a very clear philosophy towards the Constitution: he was an “originalist” who believed that the Constitution should be interpreted in keeping with the intent of the people who wrote the Constitution in the 18th century. But that doesn’t provide a lot of guidance in patent cases, since about the only thing the Constitution says about patents is that Congress has the power to issue them.

Justice Scalia’s death will not have as much impact on patent cases for two reasons: 1) he didn’t have a clear philosophical approach to patents; and 2) patent cases do not split on party lines, and many patent cases are decided with unanimous or near-unanimous decisions.

Three recent decisions that had major impact on patents – Alice Corporation v. CLS Bank, Association for Molecular Pathology v. Myriad Genetics, and Mayo Collaborative Services v. Prometheus Laboratories – were all unanimous decisions.

In some cases Justice Scalia favored recognizing patents as a property right (as do many conservatives) but in other cases he favored limits that prevent IP from being used in ways that could harm competition.

There’s no reason to think high profile patent cases facing the court, such as Halo Electronics v. Pulse Electronics or Cuozzo Speed Technologies v. Lee are likely to split 4-4 without Scalia.

So while Justice Scalia’s death will be felt strongly in many areas of law, patent law is not likely to be one of them.

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