Is the Supreme Court breathtakingly dishonest or just completely clueless?

Justice Stephen Breyer

Justice Stephen Breyer

On Wednesday, March 22, 2017, the United States Supreme Court issued a decision in Star Athletica LLC v. Varsity Brands, Inc. The case called upon the Court, in the opinion of the majority, to address the thorny issue of conceptual separability; a test for which there was absolutely no agreement among the Regional Circuit Courts of Appeal.

The question addressed by the majority was whether designs on cheerleader uniforms could be copyrighted separate from the uniform itself, which is not copyrightable because useful articles are not copyright protectable. The Supreme Court, in an opinion by Justice Thomas, joined by Chief Justice Roberts and Justices Alito, Sotomayor and Kagan, held that “an artistic feature of the design of a useful article is eligible for copyright protection if the feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article and (2) would qualify as a protectable pictorial, graphic, or sculptural work either on its own or in some other medium if imagined separately from the useful article.” (Slip op. at 17) The Court went on to also determine that the cheerleader uniforms satisfied this test and, therefore, affirmed the Court of Appeals for the Sixth Circuit. Id.

The majority opinion, although in favor of the copyright holder, was not without certain problems. First, Justice Ginsburg, who concurred in the outcome but not in the opinion, was exactly right. The Court did not need to reach the issue of conceptual separability in this case. Ginsburg wrote: “Consideration of [separability] test is unwarranted because the designs at issue are not designs of useful articles. Instead, the designs are themselves copyrightable pictorial or graphic works reproduced on useful articles.” (Ginsburg concurring at 1).

Regardless of the fact that Justice Ginsburg was alone correct, the majority has settled the law on conceptual separability, which should be positive. At least now the law won’t depend upon where the lawsuit is filed.

More difficult to swallow, however, were several passages from the majority opinion and dissent by Justice Breyer that explained the role of the Supreme Court in interpreting statutes and how they are not searching for the best policy, but the correct statutory interpretation.

Thomas wrote:

This is not a free-ranging search for the best copyright policy, but rather “depends solely on statutory interpretation.” Mazer v. Stein, 347 U. S. 201, 214 (1954). “The controlling principle in this case is the basic and unexceptional rule that courts must give effect to the clear meaning of statutes as written.” Estate of Cowart v. Nicklos Drilling Co., 505 U. S. 469, 476 (1992). We thus begin and end our inquiry with the text, giving each word its “ordinary, contemporary, common meaning.” Walters v. Metropolitan Ed. Enterprises, Inc., 519 U. S. 202, 207 (1997) (internal quotation marks omitted). (Slip op. at 6)

Thomas also wrote: “Petitioner next argues that we should incorporate two “objective” components… We reject this argument because neither consideration is grounded in the text of the statute.” (Slip op. at 15-16).

Justice Breyer, in dissent, also wrote: “The Constitution grants Congress primary responsibility for assessing comparative costs and benefits and drawing copyright’s statutory lines. Courts must respect those lines and not grant copyright protection where Congress has decided not to do so.” (Breyer dissent at 8)

These statements echo what Justice Alito wrote in SCA Hygiene, about the role of the Supreme Court as interpreter and not as legislator. The problem is this is simply NOT what the Supreme Court does in patent cases. This deference to Congress is convenient, nothing more. It is patronizing lip service that insults the intelligence of patent professionals familiar with Supreme Court patent jurisprudence, particularly the recent pronouncements on patent eligibility, which ignore the statute entirely.

35 U.S.C. 101 says that claims are patent eligible if they are written to cover a machine, a process, an article of manufacture or a compound. There are not exceptions in the statute, yet the Supreme Court in their infinite wisdom have created three “judicial exceptions” to patent eligibility. These judicial exceptions are nothing more than lawless, extra-statutory requirements imposed by the Supreme Court because they think they know better. There is no support anywhere in the statute or Constitution for “judicial exceptions,” and the very label the Court uses to describe them – “judicial exceptions” – confirms that they are above and beyond the statute.

In Star Athletica Breyer laments that the majority is ignoring the statute. On Tuesday in SCA Hygiene Justice Breyer similarly lamented that the Court was reaching a decision that upended decades of well established law and settled expectations. These concerns were simply non-existent when Justice Breyer issued the Supreme Court’s opinion in Mayo v. Prometheus, a decision that unceremoniously overruled Diamond v. Diehr and ignored the Patent Act itself by purposefully conflating novelty and nonobviousness with patent eligibility. Then Associate Justice Rehnquist specifically wrote such a conflation was erroneous in Diehr some 31 years earlier. Breyer was also not concerned with well-established law in AMP v. Myriad, which overruled Diamond v. Chakrabarty, or in KSR v. Teleflex, which directly and substantially rewrote generations of obviousness law and for the first time made it possible to reject claims as being obvious to try.

These seemingly innocent comments demonstrate a breathtaking dishonesty, which is hardly a newsworthy conclusion, or even much of a revelation to anyone in the patent community. Still, over the past few days the drivel that has been sprinkled into Supreme Court opinions has been particularly nauseating. The ends justify the means for the Supreme Court. When it is convenient they defer to Congress and wax poetically about the importance of stare decisis, as they actually had the gall to do in Kimble v. Marvel Entertainment. When adhering to well-established rules and expectations of an entire industry is inconvenient, they create exceptions to statutes, ignore statutory schemes altogether, and overrule generations of well-established law.

Perhaps even more disturbing, in dissent in Star Athletica Justice Breyer went on explained that in 1850 Lord Macaulay referred to copyrights in books as a tax on readers. Justice Breyer did not point out how ridiculous it is to think of copyrights in such an ignorant manner, but instead cited this nonsense with approval as if it is actually true! Breyer did not explain, perhaps because he himself doesn’t understand, that the existence of copyrights allows for creators to be able to create and then if the creation is desired in the market to make more and more content.

You see, it is a simple concept. There are limited hours in the day and everyone has basic requirements (i.e., food, shelter, etc.). If you cannot get paid for creating you have to spend less time creating. So copyrights allow creators to reap rewards from their labors to the extent that their work is validated in the marketplace. Seriously, for someone who loves to pontificate and professes such great knowledge of economics and the economy, Justice Breyer seems to know very little about how the real world works, very little about intellectual property, and absolutely nothing about creators and the business of creation.

In any event, Justice Breyer proceeded to proclaim: “But Macaulay also made clear that copyright protection imposes costs. Those costs include the higher prices that can accompany the grant of a copyright monopoly.” (Breyer dissent at 7)

A copyright monopoly? I’ve heard many ignorant things from those who think they understand intellectual property, but this easily ranks in the top 10, and has to be a serious challenger for the most ridiculous statements ever made. Copyrights do NOT create a monopoly and they do NOT provide monopoly rights. The Court incorrectly refers to a patent as a monopoly, but it takes a special kind of bias (and/or ignorance) to refer to a copyright as a monopoly. Allow me to explain.

First, let’s start with the obvious. You cannot have a monopoly in something for which there is no market. Copyrights attach at creation, and there are many millions, if not many billions, of copyright works. The overwhelming majority of copyrighted works will never have a market, they will never be commercialized, and if commercialized no one will ever be a buyer. Without a market there cannot be a monopoly. For someone who likes to think of himself as an antitrust expert I would expect Justice Breyer to understand this fundamental truism about monopolies, markets and market power.

Next, copyrights are encumbered by very real and substantial fair use rights. These fair use rights are not subject to the permission of the copyright owner, but instead are freely available to the world.

Finally, piracy and copyright infringement has always been a problem, but in the Internet Age it is easier than ever to rip off content creators. The Digital Millennium Copyright Act (DMCA) is largely ineffective today. Content Delivery Networks refuse to acknowledge DMCA take down notices claiming they do not host infringing content on servers despite the fact that the entire purpose of a CDN is to host content on not one, but many servers that are closer to the recipient than the original host server. Even when DMCA notices are effective infringers simply set up other websites and content creators are left to constantly chase, which could be a full-time job. And as a content creator who experiences sometimes widespread infringement perpetrated even by intellectual property professionals who wholesale copy our original content I can tell you it sure feels at times like we fight a losing battle.

A copyright monopoly? If copyrights are a monopoly it is the most bizarre monopoly I’ve ever seen. All the power is held by infringers, copyright owners must chase, be vigilant, and still fight a losing battle. Unless you are a major studio, record label or giant software company you won’t get help from the government, and Congress caved when threatened over SOPA.

None of this seems to particularly describe the type of power arrangement typically seen in a monopolistic relationship because copyrights do NOT convey monopolies, period. Frankly, I would love to have a discussion with Justice Breyer about how and why he could make such an idiotic remark.

The fact that Justice Breyer wrote the words “copyright monopoly” demonstrates a breathtaking dishonesty, or perhaps that he is just completely clueless. Whatever the case may be, having such uninformed jurists making these decisions and pontificating in grandiose ways about issues they clearly do not understand is a serious problem for the Supreme Court. They like to think they know everything about everything, and instead they continually demonstrate they are a bunch of emperors without any clothes, standing naked in the street.


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Join the Discussion

14 comments so far.

  • [Avatar for Anon]
    March 27, 2017 12:41 pm

    Lol – I used that word without drawing the “political” use of the word into mind – please feel free to use a different word in order to not draw an unintended comparison.

  • [Avatar for step back]
    step back
    March 27, 2017 12:20 pm

    Oh no. Please don’t label the SCOTeti as “deplorables”.
    (That lets them off the hook too easily.)

  • [Avatar for Anon]
    March 27, 2017 11:06 am

    It may be beyond “gross ignorance” and a purposeful (and ultra vires) policy decision by the Court to artificially limit what Congress has stated.

    That the Court chooses to label with ad hominem (the reference to “scriveners”), when they themselves are acting as scriveners in re-writing the words of Congress is beyond deplorable.

  • [Avatar for Night Writer]
    Night Writer
    March 27, 2017 08:45 am

    Consider a cotton gin: does this “organize human behavior”? Of course. It structures our entire behavior in regard to growing and processing cotton.

    The cotton and the information are analogous for inventions. The information processing machines are just processing information like the cotton gin is processing cotton. So, Stevens, Ginsburg, Sotomayor’s statements about inventions not being for organizing human behavior are offensively ignorant and ridiculous.

    The fact is that behavior is organized around processing the information so the machine that processing the information is going to organize our behavior just like the cotton gin organized the human behavior focused on growing and processing cotton.

    In this case, I think their behavior falls under the category of gross ignorance. Unforgivable really.

  • [Avatar for Night Writer]
    Night Writer
    March 25, 2017 10:06 am

    They are both.

  • [Avatar for step back]
    step back
    March 24, 2017 04:22 pm

    Breyer earned a B.A. in philosophy from Stanford University in 1959, a B.A. from Magdalen College at the University of Oxford as a Marshall Scholar in 1961, and an LL.B. from Harvard Law School in 1964. While at Harvard, Breyer was the article editor at the Harvard Law Review.

  • [Avatar for Anon]
    March 24, 2017 03:26 pm

    Dishonest, step back, may or may not include a factor of “purpose” so clear cut as your post indicates.

    Dishonest includes the lack of inte11ectual honesty – the refusal to give objective and critical thinking that reflects an awareness of one’s own bias and tendencies and arrives at a just result sometimes in spite of those views.

    Justice Breyer instead as continuously NOT used such critical thinking and acts out of apparent malice towards the concept of a person having intellectual property rights.

    The level of “dishonest” here stems from the purposeful views and decisions of Justice Breyer to place his own world view and desired policies in front of those duly delegated with that authority per our Constitution.

    This is just not something that attorneys – with an oath that does not place the Supreme Court above the Constitution – should merely accept. Our duty includes a duty to state when the Emperor is strutting around in the buff.

  • [Avatar for step back]
    step back
    March 24, 2017 01:11 pm

    It’s easy to label other people as “dishonest”.

    But it is relatively unlikely that everyone gets up every morning saying to themselves, “Today I will be even more dishonest than I was yesterday, nee ha ha”.

    It’s a lot more complicated than that.
    You have to understand the roots from whence these other people arose and the models they cling to in their heads about how the world is put together.

  • [Avatar for Eric Berend]
    Eric Berend
    March 24, 2017 11:52 am

    @ 1. ‘step back’ and 4., Gene:

    When there is a problem allowing “little people” to ‘talk to power’; then, it is certain, that conduct in violation of the U.S. Constitutional is being perpetrated, in one or more branches of the U.S. government.

    My understanding of the history of the formation of this nation, from the “Parson’s Cause” and the Virginia Stamp Act Resolution, the Boston Tea Party, “Common Sense” and the Declaration, through the Articles of Confederation, to the Federalist Papers and the Constitution, is; that Gene, is correct.

  • [Avatar for Eric Berend]
    Eric Berend
    March 24, 2017 11:29 am

    “I, (Name of Justice), do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.” (Article VI oath)

    “I, (Name of Justice), do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as Justice of the Supreme Court under the Constitution and laws of the United States. So help me God.” (Judiciary Act of 1789; 28 U. S. C. § 453)

    As an inventor, it is difficult to reconcile inherent respect for the position of U.S. Supreme Court Justice as a part of the Constitutional system of governance, with the conduct of those now occupying said positions.

    As much as ‘everyone is human’ (and therefore fallible, of course); their frequent indulgence in such partisanship merely on account of sentiments of envy, superiority complex and issue favoritism is, for my point of view, an abrogation of their oaths of office.

  • [Avatar for Gene Quinn]
    Gene Quinn
    March 24, 2017 11:07 am


    I hear you. I don’t know what the answer is. I think a big part of the problem is the echo chamber in which the Supreme Court Justices live and operate. No one dares speak truth to them for fear of what? I’m not sure. Someone needs to tell them that they know absolutely nothing about IP and they are destroying the American intellectual property system, particularly the patent system. I might actually file an amicus brief in some case at some point saying just that. Not that it will do any good, but they need to be told that truth!

    You said: “The Constitution does not allow the little people to talk truth to power.”

    That is exactly wrong. It is one of the fundamental purposes of a Constitution… for the little people to be protected to be able to talk truth to power!

  • [Avatar for Peter Corcoran]
    Peter Corcoran
    March 24, 2017 08:55 am

    This is what happens when you have recent law school graduates from the worst egghead schools in the country (e.g., Yale/Harvard) writing SCOTUS opinions. Most law school graduates don’t know anything about IP law, and the Justices don’t appear inclined to correct them. Until the Justices actually start taking an interest in correctly deciding IP issues, their erratic, profoundly damaging opinions will continue to the detriment of inventors and and the country.

  • [Avatar for EG]
    March 24, 2017 07:45 am

    Hey Gene,

    Let’s face it, SCOTUS is hypocritical, two-faced, and fork-tongued when it comes to patent law. What’s really a tragedy is that certain IP law professors who have no science or technical background are cheering this nonsense on, as well as indoctrinating scores of law students to do the same. It could take decades to unwind this mess.

  • [Avatar for step back]
    step back
    March 23, 2017 08:02 pm


    Funny. I’ve been pondering the same question.
    I think what we are seeing is a mixture of many factors.

    It is impossible for any human being to know (to store in the biological connectome networks) everything all at once.

    It is impossible for any human being to simultaneously process everything (to simultaneously energize all their biological connectome networks).

    Thus, even the “Supremes” can only comprehend a few simple things at one time and focus their thoughts on that “finite” (very small set) of simple things.

    That of course results in disjoint thought patterns heading off in all sorts of contradictory directions.

    But then again, as the honorable Justice-to-be Gorsuch warned, don’t you dare have lack of respect and audacity to criticize the un-reproachable “interpretations” of the “laws” by the Supremes based on the “facts”.

    The Constitution does not allow the little people to talk truth to power.