Tuesday, June 23, 2015

What is the "conservative" IP position?

In the Spider-Man case with a Supreme Court vote of 6-3, Justice Scalia (and Justice Kennedy) aligned with the "liberal" judges. Justices Thomas, Alito, and CJ Roberts made up the dissent of three justices.

In the Cisco case at the Supreme Court, Justice Alito aligned with the "liberals," and Justice Thomas partially so. CJ Roberts and Scalia were in the dissent.

Recall the IPBiz post [ http://ipbiz.blogspot.com/2015/05/cisco-loses-at-supreme-court-in-case.html ] on the Cisco case:

***In terms of the conservatives of the court, Justice Alito aligned
with the majority; Justice Thomas joined only parts II-B and III, and Justice
Scalia dissented.

If hypothetically the conservatives Thomas and Alito had aligned with Scalia, the vote would have been 4 to 4, and the decision of the CAFC would have stood.

link to Supreme Court text for Cisco: http://www.supremecourt.gov/opinions/14pdf/13-896_l53m.pdf

One notes that Scalia and Alito voted in opposite ways on both cases, basically the same for Scalia and Thomas.
Scalia voted with Roberts in one case (Cisco); against in the other.

The coverage of Kimble/Marvel by the New York Times
In Spider-Man Toy Patent Case, Supreme Court Stands by Past Decision

In terms of "big guy" vs. "little guy," the little guy/patentee Kimble was the loser of the Spider-Man case.
In Cisco, the decision made life a bit tougher for accused infringers who believe the asserted patents are invalid, so arguably that decision was pro-little guy-patentee.

So, using only this one lens, Alito/Thomas/Roberts favored the position of the little guy in Spider-Man.


Post a Comment

<< Home