On Wednesday, March 16th, President Barack Obama announced that Merrick Garland would be his nominee to serve as the 113th Justice of the United States Supreme Court, filling the seat left vacant as the result of the passing of former justice Antonin Scalia. Garland has sat on the Court of Appeals for the District of Columbia Circuit since 1997, serving as its chief judge since 2013.
The selection of Garland as Obama’s most recent appointee to the Supreme Court has been seen by some as an attempt to thaw Senate Republicans, some of whom have publicly remarked that they would block any Obama appointee to the nation’s highest court. It appears that Obama’s choice has had at least some of its intended effect as a few Senate Republicans have indicated that they’ll meet with Garland, although there’s no indication that the GOP majority will change course on their block of the nominee. In fact, Senate Majority Leader Mitch McConnell (R-KY) has reportedly called Garland to inform him that the Senate will not take action on his nomination.
Prior to Garland’s appointment as a Judge, he served in the office of former Attorney General Janet Reno and had a much-celebrated role in the investigation following the Oklahoma City bombing of April 1995. He has also earned the praise of Republican Party leaders in the past, Senator Orrin Hatch (R-UT) perhaps being the most notable of such voices in the Senate. By many accounts, Garland is a non-partisan choice with an incredibly sound legal mind and a fastidious dedication to legal protocol. In fact, his non-partisan background has rankled the feathers of some liberals who had hoped Obama would seize the moment and try to swing the Court sharply to the left.
Despite what you may think of Garland, it is notoriously difficult to get a sense of exactly what kind of Supreme Court judge Garland would be based on his past experience. In fact, history teaches us that predicting the judicial philosophy of appointees has vexed President after President, although Republican Presidents have probably faired worse in their appointment predictions than Democrats. Nevertheless, even when a nominee has prior judicial experience, when elevated to the Supreme Court and ultimately able to make the law rather than being required to follow the law, it is difficult to know how any Justice will vote.
Of course, that won’t stop us from trying to read the tea leaves at least a little.
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Merrick Garland Deference
The first thing to observe is that there is very little, if anything, on the record about Garland’s view towards intellectual property and patents, which is a topic he will have to contend with should he be elevated to serve on the nation’s highest court. Increasingly over the last decade the Supreme Court has taken patent cases, and this term there are two important patent cases that will be decided. Numerous petitions for writs of certiorari in important cases continue to be filed, so if Garland is confirmed he will be a relative unknown when it comes to intellectual property generally and patents specifically.
Having said this, there is one very concerning aspect of Merrick Garland’s judicial resume that shines a spotlight on what many in the patent community will view as an unacceptable judicial philosophy. It seems that Garland has throughout his judicial career sided incredibly often with government agencies in the cases he has decided, which given all that is going on at the United States Patent and Trademark Office should be concerning to patent owners.
Garland’s approach toward agency decision was noted in an April 2010 post on SCOTUSblog by Tom Goldstein, when Garland was considered a potential replacement for retiring justice John Paul Stevens; a seat eventually be filled by Elena Kagan. In a review of Garland’s judicial record it was noted that, in close cases, Garland would defer to the governmental agency in a vast majority of his rulings. He dissented in Northeast Beverage Corporation v. National Labor Relations Board (NLRB), where the majority found that the suspension and firing of union employees walking off the job to meet with union representatives regarding future employment during a corporate consolidation were unfair labor practices under Section 7 of the National Labor Relations Act. In American Corn Growers Association v. Environmental Protection Agency (EPA), Garland dissented from a majority that decided to strike down provisions of the Haze Rule targeting regional haze in areas around national parks and designated wilderness areas. Garland filed the majority opinion in Alpharma v. Leavitt, upholding some U.S. Food and Drug Administration (FDA) activity related to new animal drug applications, although that case would end up being remanded.
Deference to the federal government and its regulatory agencies seems to be a common theme throughout Garland’s tenure as a Judge. He often sided with the federal government when it was represented in cases involving the individual rights of detainees at Guantanamo Bay. A decision handed down last July in Wagner v. Federal Election Commission (FEC) featured a majority opinion penned by Garland upholding a Congressional ban on federal campaign contributions on individuals or firms currently under a federal contract. A per curiam decision released December 2013 in Judicial Watch v. Department of Defense and Central Intelligence Agency by a judicial panel including Garland upheld the classification of images of Osama Bin Laden taken post-mortem. Last December, Garland wrote the majority opinion in USA v. Nathaniel Law, which upheld the resentencing of three appellants who were charged with trafficking cocaine, crack cocaine and heroin. Time and again, it would appear that Garland isn’t interested in pursuing political ideology so much as he is interested in siding with the views of the government presented in the case.
At a time when many believe the United States Patent and Trademark Office has run amok, deference to the agency seems not to be in the best interest of the industry. Indeed, Cuozzo Speed Technologies v. Lee will be decided this term by the Supreme Court and will require the Court to determine if the Office is employing the proper claim construction standard for inter partes review (IPR). A brief filed by USTPO Director Michelle Lee supports the patent office’s rulemaking authority delegated by the America Invents Act of 2011, but how far does that authority go, and would a Justice Garland simply defer to the agency as he has done so many times in the past?
Just last week the Federal Circuit denied a petition for writ of mandamus filed by a technology company that has had a series of covered business method (CBM) challenges filed against a graphical user interface patent despite the legislative history being as clear as can be that GUIs are not considered covered business methods. Despite extremely compelling evidence that a covered business method review was instituted against a patent that is not a business method the Federal Circuit does not step in, and that same judicial philosophy of extreme deference to the agency seems to run throughout Garland’s previous majority opinions and dissents. This should be raise red flags for patent owners.
Given the fact that the IPR and CBM processes at PTAB have been worrisome (to say the least) for patent owners, the possibility that Merrick Garland would continue his longstanding deference towards federal agencies should cause at least some concern and lead to serious questions if and when he ever does receive a confirmation hearing. Confirming a Supreme Court Justice likely to rubber stamp USPTO decisions would be a terrible mistake and only further erode already tattered patent property rights held by patent owners.
A non-partisan selection for the Scalia opening on the Supreme Court is understandably welcome to many on either side of the political aisle. However, a review of Merrick Garland’s record does suggest that he has a predisposition toward siding with agencies specifically and with the government more generally. It would seem logical to assume that this judicial predisposition would manifest with Garland giving deference to the legal positions held by the U.S. Patent and Trademark Office.
That’s a very important consideration to patent owners given as the court has decided to take up Cuozzo Speed Technologies v. Lee, a case which challenges the inter partes review (IPR) processes of the USPTO’s Patent Trial and Appeal Board (PTAB).