A Look Back: Justice Breyer’s View of and Influence on Intellectual Property Law
After dedicating over a quarter-century to the Supreme Court, Justice Stephen Breyer has announced that he will retire at the end of this term, thereby ensuring his replacement is selected by President Joe Biden. Justice Breyer has been an important figure on the Supreme Court, as he worked “to build consensus for centrist decisions on a conservative court.”[1] News of Justice Breyer’s retirement has prompted discussion and reflection of the important legacy in intellectual property law that the justice will leave behind.
One of Justice Breyer’s former law clerks noted that Breyer took “a balanced approach, combining respect for the positive incentives that IP protection can provide with a concern that IP rights not be over-extended to interfere with other property rights.”[2] In the realm of copyright law, Justice Breyer exercised a principled and balanced approach. While Justice Breyer’s most recent copyright opinion in Google v. Oracle[3] highlighted his reputation of being one of the Court’s more liberal justices on the subject of copyright, several of his past copyright opinions have revealed instances in which Breyer actually favored the copyright owner. Specifically, Breyer sided with the copyright owner “in two of the nine copyright cases in which [he] wrote opinions (Aereo and Grokster),” and would have also “ruled in favor of the copyright owner [in Georgia v. Public Resources] but felt constrained by a precedent with which he disagreed.”[4] Furthermore, Breyer’s opinions “in all three cases involving digital technology… reflected an understanding of the real-world impact of copyright on innovation and competition.”[5]
Justice Breyer has also had an important impact on patent law. He has been a consistent “voice of skepticism… particularly in the area of patent eligibility.”[6] Weil, Gotshal & Manges LLP partner Ed Reines noted that “[it] is unlikely that Justice Breyer’s replacement will, anytime soon, share his leadership and emphasis on the question of limiting patent power.”[7] Breyer “set the tone for the court’s four famous patent eligibility cases of the 2010s” with his dissent from the majority’s decision to dismiss Laboratory Corp v. Metabolite Laboratories as “improvidently granted.”[8] Breyer noted that “too much patent protection can impede rather than ‘promote the Progress of Science and Useful Arts,’ the constitutional objective of patent and copyright protection.”[9]
So, what does Justice Breyer’s retirement mean for the future of intellectual property law? Breyer’s reputation as a liberal justice does not necessarily mean that another liberal justice will take the same stance as him on nuanced intellectual property issues. For example, Justice Ruth Bader Ginsburg “might have been more influential when it came to copyright” and disagreed with Breyer in several copyright cases.[10] Breyer dissented from Ginsburg’s decisions in Eldred v. Ashcroft and Petrella v. Metro-Goldwyn Mayer,[11] which expanded the copyright term and limited copyright defenses, respectively.[12] Breyer also led a majority over Ginsburg’s dissent in Kirtsaeng v. Wiley, “holding that the first sale doctrine applies to works lawfully made outside the U.S.”[13] Therefore, while Breyer’s retirement “may not change that much on political issues, as presumably President Biden will select another liberal justice to replace him… it may radically remake the court’s IP jurisprudence.”[14]
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