The Supreme Court: Protecting Patents, Copyrights and Trademarks

Protecting Patents, Copyrights and Trademarks

So far we have been talking about tangible property—things you can touch. Some people have intangible property rights that have no physical characteristics, such as copyrights, patents, and trademarks.

All three of these property rights are protected under Section I of the Constitution in the enumerated powers clause, which grants Congress the power to enact laws for purposes including the creation of money or the promotion of science and the arts.

Copyrights for Freelancers

Copyright law is well established, but the introduction of new electronic media and the Internet have raised questions about the actual rights newspapers and magazines hold versus the rights the original authors of the materials hold, if the authors are freelance writers hired as independent contractors.

Many publications print articles by staff writers as well as freelance writers. Freelance writers sign contracts as independent contractors, which spell out how a publisher can use the work. Most of the older contracts were written before computerized databases were a major source of income.

Freelance authors filed suit to stop print publications from putting their articles in computerized databases without compensation. The print and electronic publishers won a judgment in district court stating that these articles were part of the original collective work to which the authors first contributed, so therefore they were not owed additional compensation. The Court of Appeals disagreed and ruled in favor of the freelance authors.

The New York Times, Newsday, and Time appealed the case to the Supreme Court in a case titled, New York Times Co., Inc. et al. v. Tasini et al. The case was argued before the Supreme Court on March 28, 2001. The court ruled in favor of the freelancers on June 25 in a 7 to 2 opinion written by Justice Ginsburg in which she says, “the databases reproduce and distribute articles standing alone and not in context, not 'as part of that particular collective work' to which the author contributed, 'as part of … any revision' thereof, or 'as part of … any later collective work in the same series.' Both the print publishers and the electronic publishers, we rule, have infringed the copyrights of the freelance authors.”

In answer to the publisher's warnings that this ruling would have devastating consequences for the public, Ginsburg went on to say:

• “The Publishers' warning that a ruling for the Authors will have 'devastating' consequences, punching gaping holes in the electronic record of history, is unavailing. It hardly follows from this decision that an injunction against the inclusion of these Articles in the Databases (much less all freelance articles in any databases) must issue. The Authors and Publishers may enter into an agreement allowing continued electronic reproduction of the Authors' works; they, and if necessary the courts and Congress, may draw on numerous models for distributing copyrighted works and remunerating authors for their distribution. In any event, speculation about future harms is no basis for this Court to shrink authorial rights created by Congress.”

The Supreme Court sent the case back to the district court to decide on the best remedy in the case. In his dissent, which was joined by Justice Breyer, Justice Stevens wrote:

• “Because it is likely that Congress did not consider the question raised by this case when drafting [the legislation], because I think the District Court's reading of that provision is reasonable and consistent with the statute's purposes, and because the principal goals of copyright policy are better served by that reading, I would reverse the judgment of the Court of Appeals. The majority is correct that we cannot know in advance the effects of today's decision on the comprehensiveness of electronic databases. We can be fairly certain, however, that it will provide little, if any, benefit to either authors or readers.”

The full impact of the decision on the public is not yet known, since the decision is only two years old. Contracts for freelance writers have been adjusted to fix this void. Most authors must sign over electronic rights to get a freelance contract today.

Patents for Biotechs

As science enters new realms, inventors seek patents for their inventions. Sometimes a company that sells a patented product questions whether a patent should have been granted. Such was the case in J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred International, Inc.

Pioneer Hi-Bred International is a biotechnology firm that holds 17 patents for the manufacture, use, and sale of its hybrid corn seed products under section 101 of the patent law. Pioneer sells its patented hybrid seeds under a label license agreement that allows for the production of grain and feed. J.E.M. Ag Supply, doing business as Farm Advantage, bought the patented seeds from Pioneer in bags bearing the license agreement and then resold the bags.

Pioneer filed suit claiming Farm Advantage had infringed on its patent. Farm Advantage responded that the patent was invalid because sexually reproducing plants, such as Pioneer's corn plants, were not patentable. Farm Advantage claimed that the Plant Patent Act (PPA) of 1930 and the Plant Variety Protection Act (PVPA) protected plant life from being patented. The district court sided with Pioneer and stated that neither the PPA or PVPA removed plants from patent rights. The federal circuit court agreed, and J.E.M. took the case to the Supreme Court.

In a 6 to 2 opinion the Supreme Court affirmed the local court rulings. Justice Thomas wrote the majority decision and was joined by Rehnquist, Scalia, Kennedy, Souter and Ginsburg. In his opinion, Thomas wrote:

• “Denying patent protection under section 101 simply because such coverage was thought technologically infeasible in 1930, however, would be inconsistent with the forward-looking perspective of the utility patent statute.”

Justice Stevens wrote a dissenting opinion and was joined by Breyer. O'Connor did not participate in the consideration of this case. Justice Stevens did not think the patent process applied to plants. He wrote:

• “Those who write statutes seek to solve human problems. Fidelity to their aims requires us to approach an interpretive problem not as if it were a purely logical game, like a Rubik's Cube, but as an effort to divine human intent that underlies the statute. Here that effort calls not for an appeal to canons, but for an analysis of language, structure, history, and purpose. Those factors make clear that the Utility Patent Statute does not apply to plants.”

If the Congress did not intend for the patent act to include newly invented plants, it would now have to update the patent statute to clarify intent.