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The Future of American Intellectual Property: How Justice Gorsuch Could Impact the Future of Intellectual Property

The newest addition to the Supreme Court bench, Justice Neil Gorsuch, has now sat on the bench for a little over a month. At 49 years old, Justice Gorsuch is the youngest Justice on the bench. This ultimately means Justice Gorsuch has a potentially long Supreme Court career ahead of him. Deemed the most logical predecessor to the late Justice Antonin Scalia, Justice Gorsuch is a strict textualist and strives to analyze the Constitution on its meaning when enacted.[1] During the interim period between Scalia’s passing and a new appointee confirmed, the bench has sat with eight Justices. Although Justice Sotomayor has the most experience issuing opinions on intellectual property matters, Justice Gorsuch’s prior opinions provide insight into how he could impact future IP issues.[2]

Justice Gorsuch’s decisions while he sat on the U.S. Court of Appeals for the Tenth Circuit in IP matters show how he pays close attention to the statute’s language.[3] He prefers to align his opinions with the precedent as well.[4] Although Justice Gorsuch’s approach on patent disputes is not clear, he appears to haves some reluctance following the U.S. Patent and Trademark Office.[5]  His approach in trademark infringement disputes does not appear to favor either the alleged infringer or the IP owner, as seen in his case Meshwerks v. Toyota Motor Sales.[6] Meshwerks asked the court to determine whether a computer programmer should receive copyright protection for a digital model that accurately depicted a mass-produced automobile.[7] When Justice Gorsuch examined whether this model met the level of originality required for copyright protection, he looked to the language of the Copyright Act and Feist Publications v. Rural Telephone Service, a binding precedent determined by the Supreme Court in 1991.[8]

Copyright infringement and computer programming have crossed paths many times in court. Oracle America, Inc., and Google, Inc., have been battling in court since August 2010 about copyright and patent infringement.[9] Google allegedly copied nine lines of code from Oracle’s software program when working on its Android operating system.[10] Daria Vasilesecu-Palermo, a recent graduate from the John Marshall Law school and previous board member of the John Marshall Review of Intellectual Property Law, published a comment discussing the lengthy litigation history between the two corporations.[11]  Her comment proposed that the abstract-filtration-comparison test should be implemented to determine whether the operating system, Application Programming Interfaces, is eligible for copyright protection.[12]

Although the Supreme Court denied the petition for writ of certiorari on June 29, 2015,[13] the battle between the two corporations is far from over. On May 26, 2016, the jury found that Google showed that their use of the Android code and structure constituted a fair use under the Copyright Act.[14] Oracle filed its appeal on October 26, 2016.[15] While it is clear that the legal battle has just begun, there stands a good chance that Justice Gorsuch could very well decide the fate of Oracle’s infringement claim. Although his prior opinions do not give a lot of guidance on how he could vote on the matter, it is clear that he will likely to stick to the precedent and interpret the copyright act strictly by its language.

To better understand the intricacies of the legal arguments, check out Daria’s comment at:



[1] Eric Citron, Potential Nominee Profile: Neil Gorsuch, Scotusblog: Supreme Court of the United States Blog (Jan.13, 2017)

[2] IP Department, Supreme Court Justice Sotomayor’s Intellectual Property Record, IP Law Bulletin (Nov. 1, 2009); Howard S. Hogan and Lucas C. Townsent, Where Does Judge Gorsuch Fall on IP?, The National law Journal (Feb. 13, 2017)

[3] Id.

[4] Id.

[5] Id.

[6] See generally, Meshwerks, Inc. v. Toyota Motor Sales U.S.A., Inc., 528 F.3d 1258 (10th Cir. 2008).

[7] Id. at 1262.

[8] Id. at 1262;1262-65.

[9] Daria Vasilescu-Palermo, APIS and Copyright Protection: The Potential Impact on Software Compatibility in the Programming Industry, 16 J. Marshall Rev. Intell. Prop. L. 153 (2016).

[10] Id.

[11] See generally, id.

[12] Id.

[13] Id.

[14] Oracle America, Inc. v. Google, Inc., 2016 WL 4409233 (N.D. Cal. 2011).

[15] Supra note 8;