The Supreme Court's Chief Justice of Intellectual Property Law
63 Pages Posted: 16 Apr 2021 Last revised: 19 Jan 2022
Date Written: July 6, 2021
Justice Clarence Thomas is one of the most recognizable members of the United States Supreme Court. Many people recall his stormy Senate confirmation hearing and notice his fiery dissenting opinions that call on the Court to reflect the original public meaning of the Constitution. Yet observers have missed one of Justice Thomas’s most significant contributions to the Court—his intellectual property law jurisprudence. Justice Thomas has authored more majority opinions in intellectual property cases than any other Justice in the Roberts Court era and now ranks as the most prolific author of patent law opinions in the history of the Supreme Court. Thus, at a time when intellectual property has become one of America’s most important assets, Justice Thomas has played an important role in the evolution of America’s innovation law and policy.
This Article is the first to highlight the significance of Justice Thomas’s intellectual property jurisprudence. It considers how Justice Thomas emerged as the Roberts Court’s “chief justice” of intellectual property law, authoring more majority opinions than even colleagues known for their intellectual property law prowess. The Article analyzes Justice Thomas’s key intellectual property opinions to understand their importance. It also highlights the distinguishing features of these opinions, including their faithful adherence to textualism, appreciation for the role of remedies, attention to technological and business context, awareness of the impact on intellectual property practitioners, and surprising unanimity. The Article concludes that Justice Thomas’s deep respect for the constitutional separation of powers is at the heart of his intellectual property jurisprudence, as his opinions invite and sometimes nudge Congress to play its leading role in crafting intellectual property law.
Keywords: copyright, trademark, trade secret, eBay Inc. v. Mercexchange, Quanta Computer v. LG Electronics, Assn for Molecular Biology v. Myriad Genetics, Alice Corp v. CLS Bank Int’l, Star Athletica v. Varsity Brands, Oil States Energy Services v. Greene’s Energy
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