Supreme Court Study: Conservatives Support IP Rights; Liberals Do Not ?

The politics of patent law is somewhat confusing. Those with the most at stake — innovator pharmaceutical companies — lean heavily toward a Republican party affiliation. Along that line, it is Democrats — with the support of California technology companies — who are pushing through Congressional patent reform measures that would weaken the strength of patent rights.  On the other hand, the current US Patent Office Republican administration has taken major steps to tighten the patent prosecution rules of practice.  These rule changes are most vehemently opposed by the innovator pharmaceutical companies and supported by many west coast technology companies.

The judiciary has also been thought to be a mixed bag — without any identifiable liberal-conservative ideologic divide.  In a new paper, DePaul Professor Matthew Sag and his colleagues from Northwestern (Jacobi & Sytch) prove that presumption wrong — at least for Supreme Court decisions. They find that throughout the past several decades, liberal Supreme Court justices tend to rule Against the IP Owner (XIPO) significantly more often than their conservative counterparts.  In other words — conservatives tend to support IP rights while liberals tend to deny those rights. The figure below, excerpted with permission from the paper, shows the trend based on Martin-Quinn scores of judicial ideology. Interestingly, the effect holds across all the various areas of IP law.

Notes:

• Read the Sag Paper: The Effect of Judicial Ideology in Intellectual Property Cases
• Matthew Sag & Mark Shultz’s new blog: Fairly Useful
• In a 2001 paper, Kimberly Moore (now Judge Moore) studied district court claim construction decisions and found no discernible difference between Republican and Democratic appointees. 15 HARV. J.L. & TECH. 1 (2001).

Comments

[Partially circular]

One of the factors that determines the Liberal/Conservative ranking is voting record on economic cases, including IP cases. So a portion of this result is not a correllation between ideology and view on IP rights, but a correllation between view on IP rights and view on IP rights. That is, a portion on the trend merely reflects the weight that view on IP rights has in determining how the authors assigned ideology.

[YOURMOMMASAYS]

That is patently incorrect. It was Clinton who used IP to drive the economy. It was JFK who used high technology in VietName. In short, IP is inimical to conservative doctrine, because it usurps estblished lines of control. The proposition that conservatives support IP is pure folly.

[George]

I'd like to see an analysis of where the conservatives/liberals stand on patent-related matters. Perhaps the same outcome?

In any case, there is a split in thinking among conservative intellectuals regarding intellectual property. Some see it as being very positive, others as interference with the free market.

[George]

Sorry... I see that patent-related issues are split out in the above chart....

[anon]

I hate to see studies like this. The last thing we need is judges thinking "good liberals rule on IP this way" and "good conservatives rules on IP that way."

[Ryan]

I'm a lifelong registered Democrat, and sadly for me this study appears to confirm what was readily evident in the floor debate when the House passed the reform bill. The two largest opponents of the bill were Dana Roherbacher and Darrel Issa, two of the more polarizing Republican figures. Any bit of trolling around the liberal blogosphere will show that most liberal commentators, pundits, and so-called experts are all in favor of dismantling the patent system entirely or at least severely restricting patent rights. It reminds me of Thomas Franks' book "What's the Matter with Kansas", i.e. why do poorer people tend to vote Republican and against their own economic self interest. Likewise, why to the small business, entrepreneurial, and decidedly liberal tend to vote Democratic, and against their own self interest (at least in regards to their IP rights). They can't seem to fathom that the IP regime is the only leverage they have against the big-boys (Big Pharma, etc.), but rather than strengthen their own hand they would just as soon see overall reform that makes every IP position much weaker--as if this is some kind of victory for the little guy who now has to compete against Merck et al through sales and marketing. Sad for everyone, I'm afraid.

[YY]

For those who doubt the findings of this study, remember that statistics are, by nature, generalizations. There are conservatives who want to kill IP protection and liberals who want to promote IP protection.

All this notwithstanding, you can see for yourself that most of the rabid Anti-IP groups out there (e.g., the Electronic frontier foundation, and their ilk) are supremely liberal. This is just a simple and demonstrable fact. Just because conservatives are more likely to support IP rights doesn't mean you have to like their social agenda.

It is difficult, I realize, for some liberals to admit that they have ANYTHING in common with conservatives, but come on now, most of the readers of this blog have science degrees and law degrees--we can separate our emotions from our intellect, right?

[Malcolm Mooney]

"Any bit of trolling around the liberal blogosphere will show that most liberal commentators, pundits, and so-called experts are all in favor of dismantling the patent system entirely or at least severely restricting patent rights."

That is simply false. How dumb do we think we are? You're not writing for some rube in Kansas who has never turned on a computer before. Who are these online "liberal commentators" and "pundits" you refer to?

To take just one data point, Greg Aharonian strikes me as fairly liberal. He isn't for dismantling the patent system.

"Likewise, why do the small business, entrepreneurial, and decidedly liberal tend to vote Democratic, and against their own self interest (at least in regards to their IP rights)"

First of all, it's not against their own self-interest to vote Democratic. Primarily that is because the Democratic Party is presently not very liberal. Sure, they aren't insane freaks like the nutjobs who took over the Republican Party and tried to convince us that Social Security is "going bankrupt," or Saddam is going to drop a nuke on Topeka, or the Federal Government is in the best position to determine if your braindead spouse wants a feeding tube or not.

But they sure ain't liberal.

[Malcolm Mooney]

"l this notwithstanding, you can see for yourself that most of the rabid Anti-IP groups out there (e.g., the Electronic frontier foundation, and their ilk) are supremely liberal."

I think the word your looking for is "libertarian."

It's not the same thing. Liberals tend to favor a society where the unfortunate and needy are assisted by the government to help them through rough times, where the government does not favor the rich at the expense of the poor, and where the government does not routinely engage in pointless aggressive acts against its own citizens.

Most libertarians, on the other hand, are perpetual adolescents whose understanding of human nature ceased evolving after they read Starship Troopers in 10th grade. I've met one or two libertarians in my life who weren't off-the-scale hypocrites. They died relatively young, for obvious reasons.

[Lionel Hutz]

Put me down as a liberal who supports strong (but rational) IP rights.

[anon]

Lionel -- I thought you were simply a cartoon lawyer.

[Lionel Hutz]

Also babysitter and real estate salesman.

[anonymous]

Most of the people who want to dismantle the patent system are simply thieves. They include Democrats and Republicans. The lesser amount includes a few professors trying to make names for themselves and nutty socialists.

Me? Let me say that I consider Milo Minderbinder the hero of the book Catch-22, while the liberals liked Yosarian or Orr.

[Ryan]

Dear Malcolm,

Try a little website called www.dailykos.com. You will see some rejoicing at the "decimating" of the one-click patent yesterday. I trust that you know how to use a search engine. And it's "these online commentators and pundits to whom you refer".

[Malcolm Mooney]

"Try a little website called www.dailykos.com. You will see some rejoicing at the "decimating" of the one-click patent yesterday."

LOL.

Rejoicing at the invalidation of a crap business method patent that should never have issued in the first place is hardly equivalent to advocating "dismantling the patent system entirely or at least severely restricting patent rights".

I've argued with more than enough creotards and freepers to become extremely sensitized to attempts to move the goalpost. DOn't try it again.

[Michael Barclay]

"conservatives tend to support IP rights while liberals tend to deny those rights" -- this is overly simplistic by a long shot.

First, the decision by a court in any given case often has to do with issues such as statutory interpretation that draw conservative/liberal lines that have nothing to do with a judge's view on IP. The outcomes are therefore driven by different factors than this post suggests.

One only need look at the last 4 Supreme Court patent decisions to see that the theory of this post doesn't hold up - note the Court is split roughly 5-4 conservatives v. liberals/moderates:
eBay v. MercExchange - unanimous against the patent owner
Medimmune v. Genentech - 8-1 against the patent owner; Thomas, a conservative, dissented
KSR v. Teleflex - unanimous against the patent owner
Microsoft v. AT&T - 7-1 against the patent owner; Stevens, a liberal, dissented in "favor" of the patent owner

Second, the characterization of a legal opinion as pro-IP rights or anti-IP rights is often based upon thinking that is too narrowly focused. The ongoing debate in the copyright arena between content owners and technology providers is a good example. For centuries, those two camps have been at war over which approach truly favored the "progress of science and the useful arts" - starting with Gutenberg's printing press, then the piano rolls of 100 years ago, the Sony v. Betamax case of 30 years ago, and the Viacom/YouTube litigation today. In each of those cases the content owners swore that technological advances would destroy copyright and be anti-IP. The technologists argued that the content owners were the ones who were anti-IP, by trying to hold back technological advances. So is a decision favoring one side of the other in this debate truly conservative or liberal, or pro-IP or anti-IP? It's not that simplistic.

[stepback]

Michael B,
You post under your real name? That's pretty daring. What if one day you wanted to run for President?

Anyways, the above proposition that we should divide the world into 2 kinds of people: conservative and liberal, is known as a "false choice menu".

People are complex.

As for my self, I divide the world into 10 kinds of people.

(... those who count in binary and those who don't)

[small inventor]

"Likewise, why to the small business, entrepreneurial, and decidedly liberal tend to vote Democratic, and against their own self interest (at least in regards to their IP rights)"

Well said, Ryan,

I used to vote for democrats in all of the elections, until now...

The "patent reform" vote in the House of Representatives was quite disgusting and eye-opening event for me to watch.
Note that most of the New Jersey democrats are all against "reform" (all big pharma money here) and most of the California democrats are for the "reform" (big tech infringers' money here)
So what we can see here is that on the issue of national importance they vote according to the wishes of their local corporate money donors...

Founding Fathers, Constitution ?
Ha-Ha-Ha-Har-har-ha..............................
Just follow that money trail, always follow the money trail...

Disgusting
No more voting for me

[stepback]

I live in California and sent my Democratic Congressman a nasty letter after he voted aye on HR1908. He sent back a form letter response which was obviously typed up for all constituents such as myself who were against 1908.

I don't like it, but I suspect that patents are one of those things that don't draw votes for Democrats. The average Democrat is of middle or low income and can't afford their own patent attorney. (Heaven knows I can't afford me.) So they never will get a patent because they can't afford it and probably because they don't know what those patent things are for anyways.

The Democrats are playing a cynical numbers game rather than worrying about having a principled position.

In a democracy, Patents are one of those things that easily fall apart under the tragedy of the common people.

[too lazy to read the paper]

"That is, a portion on the trend merely reflects the weight that view on IP rights has in determining how the authors assigned ideology."

That's interesting. If you're right - that the original "Martin-Quinn" scores gave conservative marks to those who were pro-IPholder and liberal marks to those who weren't (which that paper appears to do), this newest graph based on those scores shows, in some degree, nothing more than the original Martin-Quinn associatiation of IP rights with liberal/conservative. Does anyone know if the Martin-Quinn scoring assigned conservative points to pro-IP judges, and if so how much weight it got?

[Perry Saidman]

If Justice William O. Douglas were alive today, he would applaud, even have likely written, the KSR case, as well as the others. An avowed liberal, and very suspect of enlarging patent rights at the "expense" of the public domain. Paradoxically, the conservatives' stance (according to these statistics) in allegedly supporting IP goes against longstanding conservative doctrine which favors open and free competition instead of monopolies - there's a ton of Supreme Court precedent expressing just that. If the stats are to be believed, the conservatives have lost sight of this doctrine in favor of supporting big business simply because IP is a way of controlling the market, i.e., stifling competition with a legal monopoly. As far as IP giving little guys leverage against big guys, let's not kid ourselves: getting IP is only a license to sue, and a lot of big guys would just as soon steal from a little guy (regardless of IP) than license it.

[anonymous]

The Liberal/Conservative paradigm no longer exists. It’s a fake distinction to distract us from their collectivist takings.

[Shubha Ghosh]

I cringing at reading all these posts that engage in more partisan politics, inevitably applied to the field of IP. It may be safer to look at the particular interests affected by different IP rules before making generalizations such as conservatives like IP and liberals don't. It may be safe to say that conservatives like IP that benefit big established business while liberals prefer IP that benefits new entrants and innovation that challenges the status quo. The beauty of the IP system is that the rules can go either way.

[Ed Winsse]

Liberal are against the patent laws because they protect big business too much. So they strike down patent laws that they see at the moment favoring big business. The laws they strike down eventually screw the independent inventor. Conservatives are against the patent laws because they provide a way for individuals to screw with big business' bottom line too much. So they strike down patent laws that they see at the moment go against big business. The laws they strike down eventually screw the independent inventor.

[John Spevacek]

Stepback,

I loved you closing joke. My brother, the mathematician of the family, states there are 3 types of mathematicians: those who can count,...

[electron john]

There never was any confusion on this point. Socialists and collectivists wear today's cloak of "liberal." So, it is ineluctable that liberals are determined to undermine intellectual property rights of all types.

The focus of intellectual property rights under the Constitution is on the rights of the individual, the inventor, and not on the "rights" of society.

Currently, society is given the opportunity to benefit from the intellectual property disclosed by an inventor, in exchange for a limited monopoly granted to the inventor. The inventor (an "individual") also enjoys the freedom of contract to transfer these rights to another individual, which may be a constructive individual or corporation.

These notions are abhorrent to socialists and collectivists, who flaunt the badge of "liberal."

To these liberals, the intellectual efforts of an inventor (or artist) is "owed" as a benefit to the greater good, and must never be monopolized, even for a limited term.

The rights of society always trump the rights of the individual, which explains many other current attacks against individual rights granted under the Constitution, the Bill of Rights, or other inherent individual freedoms.

To conceal their subterfuge, these liberals wisely champion and market a select few individual freedoms, as if they were bedrock Constitutional guarantees. It is a smokescreen easily blinding the overwhelmingly confused, undereducated, or deluded public.

Also, the individual is forbidden from colluding with other individuals against the interests of others in society (i.e., becoming less equal, gaining an advantage). Legitimate contractual activities are condemned as racketeering or a dark conspiracy.

For example, socialists believe that certain drugs ought to be provided for free to those whom they deign "deserving" and for causes they identify as "worthy." Consequences are to be borne by the drug companies and those considered by the liberals as “able to pay.”

After all, it is the province of the government to favor which drugs, technology, or products are brought to market. It also is the province of government to regulate the channels, quality, cost, and availability of drugs, technology, or products.

No individual entity, whether inventor or corporate patent owner can be permitted to perform these functions because individuals cannot be trusted to act in the interest of others, only themselves.

Even at the risk of unveiling their socialist agenda, the liberals stand for the proposition that, even if allowed, patents are to be vitiated if the burden of the inventor's patent monopoly is too great for society to bear. The overwhelmed public cheers their treachery.

Similarly, copyrights may be ignored because they interfere with the ability of society to enjoy the intellectual fruits of an artist.

Of course, those who purport to be advocates of society crave political power because this is the only way they can gain an advantage in a society where everyone is the same (not the same as "equal").

The socialist mentality has been driving changes over the past 15+ years to "unify" our patent law system with that of openly socialist societies.

In a society in which the rights of the individual are trumped only by public safety, intellectual property rights are essential components of societal growth, advancement, and well-being.

Unfortunately, it really is that simple, and the “liberals” (i.e., socialists/collectivists) motivations are all too transparent.

[Lionel Hutz]

Electron John,

What color is the sky in your world?

[electron john]

Usually a beautiful azure. Currently, a choking brownish-white. Thanks for your interest in reality.

Don't expect zebras at the sound of hoofbeats.

[Just an ordinary inventor(TM)]

Dear electron john,

I haven’t been following this thread and I only skimmed you comment.
However, I can tell you this in clear and unmistakable terms:

The Constitution’s patent clause, “Article I, Section. 8: The Congress shall have Power …” Clause 8:
“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;”

has this purpose: “To promote the Progress of Science and useful Arts” for “We the People.”

Here’s the patent-inventor deal:
To encourage inventors to publish their work, as opposed to keeping their inventions secret, the Congress has historically granted, according to the Constitution, “the exclusive Right” to the inventor for periods and under terms set and re-set from time to time.

That is the way it worked all the way up until the Supreme Court dealt a low un-Constitutional blow in the bogus MercExchange v eBay decision.

The red ribbon covers of U.S. patents bear this Grant (emphasis added):

“Therefore this United States Patent
Grants to the person(s) having title to this patent THE RIGHT TO EXCLUDE OTHERS FROM MAKING, USING, OFFERING FOR SALE, or selling the invention throughout the United States of America or importing the invention into the United States of America for the term set forth below, subject to the payment of maintenance fees as provided by law.” (emphasis added)

The Supremes’ MercExchange v eBay ruling is a corruption of our Constitution. The Supremacy Clause (Article VII) in the Constitution mandates that it should not stand. Such a change can only come about by Amendment (Article V).

We are living in an age of flagrant disregard of our Constitution. We are in the process of rapidly becoming a second rate nation. It is making us red-blooded American sick.

Your beautiful azure sky is falling. Now you know. You’ll thank me in the morning.

[Just an ordinary inventor(TM)]

Dear electron john,

The above comment was in response to your notion that:

“The focus of intellectual property rights under the Constitution is on the rights of the individual, the inventor, and not on the ‘rights’ of society.”

Ask Mr. Lionel Hutz; I expect he’d tell you the same thing. At least I hope he would.

[Xaminer]

Considering that one of the major candidates is on record as saying "We're going to take things away from you for the common good", THAT's saying something.

[step back]

Electron John,

Well, being that this is Ayn Rand's 50th anniversary for "Atlas Shrugged" it is only befitting that you come out on this web site to flaunt your objectivist reality. Hopefully you will soon find the hidden passage to Galt's Gulch where you and all of the rest of your elites who hold up the world on your shoulders alone can mingle and share with one another according to your singular productivities.

Don't forget to clamp the Limbaugh enlightenment electrodes tight to the scalp so that they help you forget totally your "public" school teacher and all others who didn't help you one iota to get onto the self-made mount from which you proudly preach today.

[Mr T]

Rightious Electron John! You da man of the day. Thieves and socialists indeed.