What Minerva v. Hologic Says About the Supreme Court
Much has been made of the Supreme Court’s current ideological alignment.[1] This reaction is not unjustified, as six of the current justices are Republican appointees—as opposed to only three being Democratic appointees—not to mention the political maneuvering that went into the confirmation of some of the justices.[2] While there is, what some might call, a “conservative majority” sitting on the Court, during its brief time in this current alignment, the Court has shown that its commitment to traditional conservative judicial values is not so robust.[3] Indeed, the Court has taken a balanced, moderate approach, as opposed to the extreme conservative approach some predicted it would.[4] The assignor estoppel case of Minerva Surgical, Inc. v. Hologic, Inc. is a case on point.[5]
Minerva Surgical, Inc. v. Hologic, Inc. is a fairly niche patent law case.[6]Minerva deals with the doctrine of assignor estoppel—whether an inventor who assigns a patent (to another for value) of his own invention, can later litigate for the invalidity of the very same patent.[7] The logic of assignor estoppel is rather straightforward: an invalid patent is worthless and by assigning a patent for value, the inventor is admitting that the patent is not worthless.[8] The doctrine estops the inventor from making an about-face, and arguing for the invalidity of a patent he once believed to be valid.[9]
The Supreme Court first approved assignor estoppel in 1924, in Westinghouse v. Formica, which “grounded assignor estoppel in a principle of fairness.”[10] What puts the status of assignor estoppel in question, however, is the Patent Act of 1952.[11] The basic question facing the Court is whether the Patent Act of 1952 repudiated the doctrine of assignor estoppel.[12] The majority holds it did not, but the (principal) dissent holds it did.[13]
The breakdown of the justices is fairly interesting. In a majority decision written by Justice Kagan, the two other Democratic appointed justices (Breyer and Sotomayor) joined, but so did Chief Justice Roberts and Justice Kavanaugh—both Republican appointees.[14] Justice Barrett wrote the principal dissent, joined by Justices Thomas and Gorsuch, while Justice Alito dissented on his lonesome.[15]
The disagreement lies within principles of statutory interpretation. The Patent Act of 1952 provides that “invalidity of the patent shall be a defense[] in any action involving” infringement.[16] The principal dissent complains that the majority does not abide by this “apparently absolute language,” referring to the word “any.”[17] Surely, the Justice Barrett reasons, the doctrine of assignor estoppel falls under the subset of “any action involving” infringement.[18]
The majority’s approach is two-pronged. First, the Court clarifies Westinghouse’s approach, holding that assignor estoppel is an equitable doctrine.[19] It is fairly intuitive to restrict inventors from arguing both sides of a patent’s validity, to estop inventors from contradicting themselves in a court of law. Second, the majority understands Congress as “legislat[ing] against a background of common-law adjudicatory principles,” which will apply unless there’s evident statutory evidence to the contrary.[20]
In sum, there are three fundamental reasonings dominating this case. The four justices in dissent emphasize textualism.[21] The five justices in majority emphasize fairness, and presumptions of Congressional intent.[22] My intuition is that, within the majority, the three Democratic appointed justices were more concerned with fairness, while the two Republican appointed justices were concerned with presumptions of Congressional intent.[23]
Despite the patent field not being ripe for political disagreement, Minerva is a good representation of the Court’s balanced approach. The Court maintained this balanced approach in a much more politically contestable case: Fulton v. City of Philadelphia, which dealt with religious liberty and gay rights.[24]. In that case as well, the Court took a moderately conservative approach, finding a violation of religious liberty on narrow grounds, instead of returning to a doctrine of strict scrutiny.[25] While the Court may lean conservative, it is not acting as dominantly conservative as some might have thought.[26]
This may very well mean that the Supreme Court is not a 6–3 Court, but is probably closer to 4–3–2. An alignment like this is far from dominant, but quite balanced. Yes, there are 6 Republican appointees on the Court, but, as Minerva shows, this won’t necessarily lead to a singular force dominating the Court for years to come.
Footnotes
