The Effect of Judicial Ideology in Intellectual Property Cases

Abstract

This article investigates the relationship between ideology and judicial decision-making in the context of intellectual property. This article empirically establishes that judicial decision making in relation to IP is significantly and predictably shaped by judicial ideology. Using data drawn from Supreme Court intellectual property cases decided in between 1954 and 2006, we show that ideology is a significant determinant of cases involving intellectual property rights. However, our analysis also shows that there are significant differences between intellectual property and other areas of the law with respect to the effect of ideology. This analysis has important implications for the study of intellectual property. It also contributes to the broader judicial ideology literature by demonstrating the effect of ideology in economic cases.T P

Expertise, Experience, and Ideology on Specialized Courts: The Case of the Court of Appeals for the Federal Circuit

“…In addition, we have shown that there is an underlying ideological component to decisionmaking in obviousness cases—and that the effect of ideological considerations is partially contingent upon expertise. This supports and extends the assertions of others (Sag et al 2009; Howard 2005) in showing that otherwise complex or technical areas of law are not immune to ideological decisionmaking.…”

“…As part of that analysis, we also consider how such expertise may interact with ideological considerations to affect judicial decisionmaking. Ultimately, we extend the work of others (Sag et al 2009; Howard 2005) by showing that decisionmaking in patent cases, as in some other technical areas of law, can be ideological.…”

“…Perhaps not surprisingly, detailed empirical analysis of decisionmaking on the Federal Circuit in patent validity cases has failed to find much of a role for judicial ideology (Allison & Lemley 2000). Indeed, one review of the literature on ideology's impact on decisionmaking in the larger field of intellectual property law (which encompasses patent law) concludes that the “marginalization of questions of ideology is so substantial in the IP literature that there are very few articles where the question is even raised” (Sag et al 2009:117). Indeed, a study by the most recent appointee to the Federal Circuit, Judge Kimberly Moore, finds no differences in the ways Republican and Democratic district court judges construe patent claims (Moore 2001).…”

“…Instead, we approach defining the ideological outcomes in these cases on the basis of the traditional economic stances of Republicans and Democrats. As Sag et al (2009) note, it is highly unlikely that judges do not have policy preferences with respect to the outcomes in intellectual property (and thus patent) cases because they raise “questions regarding property rights …” (Sag et al 2009:119). Indeed, in attempting to define the political economy of intellectual property law, Landes and Posner (2003) note that free market capitalists have frequently favored greater protection for patent rights.…”

Experts Judging Experts: The Role of Expertise in Reviewing Agency Decision Making

“…In any event, in order to accurately assess the possible pertinence of ideological considerations to the Federal Circuit's decisions in obviousness cases, in addition to any interactive effect ideological factors may have with expertise, we must necessarily define liberal and conservative outcomes in patent obviousness cases. As has been noted elsewhere (Sag, Jacobi, and Stych 2007;Miller and Curry 2009), simply relying on the underdog/upperdog distinction that often governs the coding of economic case data is inappropriate for examining obviousness decisions. 11 Consequently, we utilize traditional economic stances of Republicans and Democrats to conceptualize the ideological outcomes in patent obviousness cases.…”