What West Virginia v. Environmental Protection Agency means for IP
On November 1st, ranking member of the House Judiciary Committee Jim Jordan (R-OH) sent letters to the heads of several federal agencies, asking what changes had been made in their agencies in light of the Supreme Court ruling in West Virginia v. Environmental Protection Agency. Kathi Vidal, the director of the United States Patent and Trademark Office (USPTO), was one of these recipients. While Congressman Jordan’s letters are clearly political, it is ambiguous to what extent West Virginia will have on the subject matter eligibility for patents.
The Supreme Court ruled 6-3 in West Virginia that the Environmental Protection Agency (EPA) unlawfully created emission caps for the purpose of generation shifting. The Court reasoned that the Clean Air Act never explicitly gave the EPA the power to create emission caps, and that this was outside a reasonable interpretation of the text of the Clean Air Act. Given that switching from high-emission fuels to lower-emission fuels was of “vast economic and political significance,” Congress needed to expressly give them authority to carry out this change known as ‘major questions doctrine.’ This idea runs against long-standing ‘Chevron deference’ as established in Chevron U.S.A., Inc. v. NRDC which held that a government agency must obey any clear lines in the sand when interpreting law, but courts will defer to the agency in ambiguous situations so long as the interpretation is reasonable.
While most legal observers have commented on the impact of West Virginia on federal initiatives to curb climate change, Congressman Jordan sees the logic undergirding the ruling as applying to the USPTO, among other administrative and law enforcement agencies, accusing them of “abus[ing] administrative law.”
The USPTO has requested comments from IP industry stakeholders regarding subject matter eligibility guidelines for examiners assessing Section 101 issues in filed patent applications. 35 U.S. Code § 101 states that “whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefore, subject to the conditions and requirements of this title.” Patent attorney Curtis A. Evans filed a comment pleading for Congressional action to stop uncertainty regarding Section 101 eligibility, as he believes it leaves the agency vulnerable to major questions doctrine. Legislative clarity is also needed to ensure that patent eligibility confusion does not continue to be used by Big Tech to escape liability for taking inventions, per Evans.
It is not unclear whether federal courts will view IP law as a question holding “vast economic and political significance,” regardless of Congressman Jordan’s interpretations. It appears doubtful that Congress will ever bother taking the time to clear up Section 101 ambiguities; patent reform doesn't make for good campaign ads. A system which allows agencies enough autonomy to fulfill their purpose while maintaining Congressional oversight over them is most ideal for not just the USPTO, but the federal government as a whole.
AUTHORED BY:
Nick Weising
PHOTO CREDITS:
Greg Nash/Pool/Getty Images
Fair Use Returns to SCOTUS
Photo by Ian Hutchinson
What do Andy Warhol, Prince, and Jaws have in common? As of late, a case in front of the US Supreme Court. After battling in lower courts, a fair use case that pits Andy Warhol’s estate against photographer Lynn Goldsmith arrived at the Supreme Court two weeks ago. The ruling will consider the question of how far artistic works are allowed to go when drawing upon prior works. In this case, photographer Lynn Goldsmith sued Andy Warhol’s estate for a 1984 series of paintings that the late artist created based upon a 1981 photo of Prince Goldsmith had taken. An earlier ruling by r a lower court adjudicated that the paintings were not protected by the fair use doctrine, which allows for the unlicensed use of copyrighted work conditional on its meeting of certain factors. The lower court based its decision on the notion that there was not enough transformative use of the photo in the painting and, thus, it violated Goldsmith’s copyright. Warhol’s estate appealed this ruling, and the Supreme Court took up the case in its docket.
This case represents the first fair use in art case to enter the Supreme Court since 1994, and its effects are sure to be plentiful. The factor in question for the Court will be whether the paintings constituted a transformative use of the photo and whether that transformed meaning is even relevant when the Court sees clear derivation. Chief Justice Roberts seemed to make a distinction between the transformed meaning of the photo, which simply captures Prince’s appearance, while the paintings serve as a “commentary on modern society,” implying that the clear difference in purpose could create a fair use exception. Still, the justices considered other adaptions and questioned whether a ruling supporting this transformative meaning exception could harm creators long term; Justice Kagan specifically mentioned that producers of movie adaptions of novels, like Jaws, could take a ruling in favor of the transformative meaning as license to create adaptions without the consent or monetary compensation of the original creator. Justice Kagan questioned whether this type of transformative derivation really achieves copyright law’s ultimate goal of “fostering creativity.”
While this case appears to cover only a single conflict, its implications will be wide reaching considering the vast body of works that exist today as a transformative derivation of existing works. Not only will the creative impacts be broad, but the economic shift could be sizable if producers are able to use art without paying for a license under this type of fair use exemption for ‘transforming the meaning’ of the original work. Creators and lawyers alike will be eager to hear what the Court decides this June.
AUTHORED BY:
Dana Karami
PHOTO CREDITS:
Ian Hutchinson