President Trump recently nominated Brett Kavanaugh to fill the vacancy left by the retirement of Supreme Court Associate Justice Anthony Kennedy. Then President George W. Bush nominated Kavanaugh to the DC Circuit Court of Appeals in 2003; he was confirmed and took the bench in 2006. A report from Bloomberg Law discusses some of the intellectual property issues Kavanaugh participated in while on the DC Circuit:
In Settling Devotional Claimants v. Copyright Royalty Bd., he joined a 2015 decision that criticized the royalty board’s judges for arbitrarily setting rates in violation of the Administrative Procedures Act.
He also wrote the 2015 decision in Indep. Producers Grp. v. Librarian of Congress, affirming the royalty board’s decision on cable re-transmissions payments for sporting events.
In Soundexchange, Inc. v. Librarian of Congress, Kavanaugh joined the court in 2009 in affirming the copyright board’s rates for songs played on satellite radio stations. But he also wrote a short concurring opinion, saying that the board’s judges should be confirmed by the Senate because they’re principal officers of the government. Since they’re not, Kavanaugh suggested that the board is unconstitutional.
In Recording Indus. Ass’n of Am., Inc. v. Librarian of Cong., Kavanaugh wrote a 2010 decision that upheld the copyright board’s royalty rates for ringtones and a penalty for late payments, saying the board adequately explained the reasoning behind both rates.
There are a number of IP cases currently pending before the Supreme Court, including one interpreting the on-sale bar of section 102. The Bloomberg report also suggests Kavanaugh’s “views on administrative power and decision-making could be important if patent owners bring another constitutional challenge against inter partes reviews.”