Which Supreme Court justices, present or historical, have ruled the most against intellectual property rights?

  • Can you cite one example of a justice ever ruling against intellectual property rights, even as a dissenting opinion? I don't understand what the question would even mean, unless you're thinking that there may have been a justice with an explicit "property is theft" ideology.
    – user6726
    Sep 7, 2018 at 23:46
  • 2
    @user6726 I think that in this context "anti-intellectual property" means favoring weaker rights for holders of patents, copyrights, trademarks, etc., not holding the opinion that there should be no such rights at all.
    – ohwilleke
    Sep 8, 2018 at 1:43

1 Answer 1


Which Supreme Court justices, present or historical, have ruled the most against intellectual property rights?

In recent years, the U.S. Supreme Court has narrowed the scope of intellectual property rights, overturned more expansive rulings of the Federal Circuit, and overridden Patent and Trademark Office policies consistently.

All but two the 26 U.S. Supreme Court rulings on the subject (pro or anti-IP holder) in the last 13 years (both in 2018) have either been unanimous or had only one dissenter (with no one consistent dissenting justices).

The two 2018 cases with more than one dissenting justice, each involving the inter partes review of previously grated patents by the PTO under a new patent statute, implicate separation of powers and civil procedure issues that have historically been more controversial than pure intellectual property issues.

Oil States Energy Services v. Greene's Energy Group (2018) (7-2 with Gorsuch and Roberts dissenting) (upholding PTO invalidation of previously granted patents);

SAS Institute v. INACU (2018) (5-4 with Ginsberg, Breyer, Sotomayor and Kagan dissenting)(expanding scope of PTO reconsideration of previously granted patents).

Matal v. Tam (2017) (unanimous) (overturning PTO policy on offensive trademarks);

Sandoz Inc. v. Amgen Inc. (2017) (unanimous) (weakening patent protections vis-a-vis biologically similar drugs to patented ones);

Impressions Products, Inc. v. Lexmark Int'l, Inc. (2017) (7-1 Ginsberg joining the ruling in part and dissenting in part) (weakening rights of patent holders);

TC Heartland LLC v. Kraft Foods Group Brands LLC (2017) (8-0) (overruling Federal Circuit by limiting venue in patent infringement cases);

SCA Hygiene Products Aktiebolag v. First Quality Baby Products, LLC (2017) (7-1 with Breyer dissenting) (disallowing laches defense to patent law claims);

Samsung Electronics Co. v. Apple, Inc. (2016) (unanimous) (limiting damages awards in multi-component products where only some components are infringing);

Octane Fitness, LLC v. Icon Health & Fitness, Inc. (2014) (unanimous) and Highmark Inc. v. Allcare Management Systems (2014) (unanimous) (the Federal Circuit had set too high a standard for the recovery of attorneys' fees for frivolous patent prosecutions);

Alice v. CLS Bank, Int'l. (2014) (unanimous) (limiting software patents);

Medtronic v. Mirowski (2014) (unanimous) (burden of proof wrongly placed on someone other than the patent holder);

Association for Molecular Pathology v. Myriad Genetics (2013) (unanimous) (invalidated patents on naturally occurring DNA sequences);

Mayo Collaborative Services v. Prometheus Laboratories, Inc. (2012) (unanimous) (district court's factual findings made clear that drug monitoring device patent merely restated a law of nature and was invalid);

Caraco v. Novo (2012) (unanimous) (alleged infringers right to bring counterclaims expanded);

Bowman v. Monsanto Co. (2012) (unanimous) (first sale doctrine does not invalidate ban on reproducing crops grown with patented GMO seeds);

Kappos v. Hyatt (2012) (unanimous)(expanding ability of applicant denied a patent to challenge the denial with additional evidence);

Global-Tech v. SEB (2011) (8-1, Kennedy dissenting) (added knowledge of infringement element in claim for induced patent infringement);

Microsoft Corp. v. i4i Ltd. Partnership (2011) (unanimous) (presumption of validity of patent continues to apply during patent re-examination process conducted by PTO);

Bilski v. Kappos (2009) (unanimous to reverse, complicated holding as to extent of new law)(limiting software patents);

Quanta Computer, Inc. v. LG Electronics, Inc. (2008) (unanimous) (disavows Federal Circuit doctrines allowing patent holders to limit use of patented device after a first sale);

KSR International v. Teleflex (2007) (unanimous) (expanding obviousness defense);

MedImmune v. Genentech (2007) (8-1, Thomas dissenting) (allows for contests of patent validity without risking liability by infringing patent prior to legal ruling on question);

Microsoft v. AT&T (2007) (7-1, Roberts dissenting) (U.S. patents laws don't have extraterritorial application);

eBay Inc. v. MercExchange, L.L.C. (2006) (unanimous) (sets higher standard for obtaining injunctions once infringement is established);

Merck KGaA v. Integra Lifesciences I, Ltd. (2005) (unanimous) (exemption from patent infringement applies to use of patented drugs for narrow purposes of research associated with FDA drug approval process).*

Intellectual property issues have not been a partisan or ideological issue on the U.S. at any time in recent memory, and have not been a signature issue of any one justice relative to the other justices. Dissents in IP cases, where they have occurred have tended to be related to non-IP aspects of the cases.

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