The U.S. Supreme Court interprets and analyzes federal legal and constitutional cases, and its interpretation is usually considered the last word on a particular issue. Because its role is so central to our legal and constitutional system, it rarely issues decisions in more than a few dozen cases a year, out of thousands of cases that are appealed to the court.
The court’s 2020–2021 term, which began in October 2020 and ended in July 2021, was no different, with the court only issuing 67 opinions overall. The 2021–2022 term appears to be on a similar track, with 56 cases having been argued or scheduled and another dozen possible.
With comparatively few cases covering any given issue, Supreme Court opinions generate a significant level of attention in the legal community and the business communities affected by those opinions. The information industry is no exception, with a small-in-number but potentially big-in-impact collection of decisions in the 2020–2021 term and the anticipation of similar impactful decisions in the 2021–2022 term.
Google LLC v. Oracle America, Inc.
Four cases in particular stand out from the Supreme Court’s 2020–2021 term that may have a significant impact on the information industry. The decision that seemed to get the most attention was the April 2021 ruling in the case of Google LLC, v. Oracle America, Inc., which held that Google’s copying of portions of Oracle’s Java SE computer program in order to develop Android-based applications was a fair use of Oracle’s copyrighted program. The copying involved “declaring code,” which calls up specific tasks for use in applications. Google copied several thousand lines of code from Java’s API so that programmers who were familiar with Java could create Android-based apps.
The court held that Google’s use of the API code was transformative in that it was being used to “expand the use and usefulness of Android-based smartphones.” It was also significant that the use was limited to only what was needed to transform to the different platform and was a very small percentage of the overall API. The court made an interesting point that Oracle would benefit by the “reimplementation of its interface into a different market.”
As one of relatively few fair use opinions from the court, the impact of this case will likely be significant. The court suggested that its effect was limited to the more functional declaring code part of the programming and not the more creative source code, and it expressly stated that its decision did not “overturn or modify” earlier fair use cases. Still, it opened a new door in what has been an expansion of the transformative standard, which will undoubtedly be explored.
United States v. Arthrex, Inc.
Two patent decisions were issued by the court in 2021, both comparatively technical in nature, but with the potential for significant impact. The first was United States v. Arthrex, Inc., which determined that the Administrative Patent Judges (APJs) who make up the Patent and Trial and Appeal Board (PTAB) had not been constitutionally appointed.
The PTAB handles various patent matters, including reviews of patent validity. According to Article II of the U.S. Constitution, certain “principal officers” of the executive branch must be confirmed by the Senate, while “inferior officers” can be appointed without Senate consent. The difference focuses on whether the officers’ decisions are considered final or subject to review. The court held that because PTAB decisions are considered final, the APJs need to be confirmed by the Senate. However, the court also held that as an alternative, the law provides that the director of the U.S. Patent and Trademark Office—a “principal officer”—has the power to review PTAB decisions. Commentators have raised concerns that the director is a political appointee and if that may have an impact on director reviews, as well as concerns about the workload on a “busy bureaucrat.”
Minerva Surgical, Inc. v. Hologic, Inc.
The second patent decision was in the case of Minerva Surgical, Inc. v. Hologic, Inc., which tested the limits of the doctrine of “assignor estoppel.” This is a basic fairness principle that provides that if a patent owner assigns (sells) a patent to another party, the seller is assuring the buyer that the patent is valid, so they are not permitted to make a later claim that the patent is invalid. In this case, Minerva Surgical sold a patent portfolio to Hologic. Hologic expanded at least one of the patents by adding additional claims. Minerva Surgical developed a new product line, which Hologic claimed infringed on the patent that it had bought and expanded. Minerva Surgical claimed that the expanded patent was invalid, and Hologic asserted that the assignor estoppel doctrine applied.
The court rejected an attempt to do away with assignor estoppel, but limited its scope. Because the doctrine is based on fair dealing, it only applies when there have been no changes to the sold patent. However, because Hologic added new claims to the patent, the doctrine would not automatically apply. More broadly, the court indicated that the doctrine would not apply when circumstances prevent or impact the patent’s ability to assure the validity of the patent, citing the examples of an inventor who assigns patent rights to an employer and a changing legal circumstance.
The dissenters in the 5-4 decision mostly argued that the doctrine of assignor estoppel should go away completely. That would open up an additional avenue for inventors to challenge the validity of existing patents. As it is, the court put in an alley, not an avenue.
Van Buren v. United States
The court issued a major decision on the scope of the Computer Fraud and Abuse Act (CFAA) in Van Buren v. United States. I wrote about this decision in a June 22, 2021, NewsBreak, but in a nutshell, the court determined that the CFAA’s criminal sanctions only apply to situations in which a person does not have authority to access computer-based information. It rejected a broader interpretation that would have applied the act to situations in which a person has authority to access information, but misuses that authority.
The Upcoming Court Docket
The 2021–2022 court docket only has a couple of cases of interest to the information industry, both of which have been argued but not decided. The first is Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., which raises questions about whether errors in the copyright registration process may go so far as to invalidate the copyright or prevent a copyright owner from pursuing infringement claims. The second case, Federal Bureau of Investigation v. Yassir Fazaga, is in the national security space and addresses the limits on the government to use the “state secrets” privilege to the prevent the use of national security information in litigation. Finally, a patent case involving automobile axles may come before the court. It would test the limits of patent eligibility for abstract ideas—which was already tested in the famous (or infamous) court decision of Alice Corp. v. CLS Bank International.
Any case the court takes has the potential to be a game changer, even if it doesn’t initially appear to be. Even those cases that seem to be “technical” in nature will impact the decisions that the relevant individuals and industries make in managing their activities going forward.