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How Might A Justice Kavanaugh Impact The USPTO?

By Tiffany Blofield
July 19, 2018
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Since last week, the internet has blown-up about what United States Supreme Court nominee Judge Brett Kavanaugh might decide regarding issues coming before the Supreme Court if he joined the highest Court of the land. As a judge on the D.C. Circuit, Judge Kavanaugh has been skeptical about the authority of administrative agencies. This could impact decisions rendered by the United States Patent and Trademark Office (“USPTO”).

Specifically, Judge Kavanaugh has been critical of the authority of the government agencies to promulgate regulations interpreting legislation. Judge Kavanaugh would likely find it inappropriate for an agency to fill in gaps left in a statute.  Judge Kavanaugh would likely chip away or do away with the Chevron doctrine. Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). This doctrine refers to a defense invoked by a government agency that allows a court to show deference to the agency’s interpretation of a law that it administers.

Several years ago, the United States Supreme Court held that issue preclusion should apply (so long as the other elements of issue preclusion are met) when the trademark usages adjudicated by the Trademark Trial and Appeal Board (“TTAB”) are materially the same as those before the district court. B&B Hardware Inc. v. Hargis Indus., _ U.S. _, 135 S. Ct. 1293 (2015).  In other words, the decision of the TTAB can be binding on other courts. DuetsBlog has posted on this decision before:

Likelihood of Preclusion: Fallout From the Supreme Court Ruling on Likely Confusion and What Do Gripe Sites Have to Do with SCOTUS’s B&B Hardware Decision?

Justice Thomas and the late Justice Scalia disagreed with the majority in the B&B Hardware decision. In his dissent, Justice Thomas was troubled by the fact that the TTAB was not comprised of Article III judges. Instead, the judges serving on the TTAB lacked input from either the President of the United States or the Senate. The dissent believed that applying issue preclusion raised serious constitutional concerns.

Judge Kavanaugh appeared to have a similar view in connection with a decision related to an underlying decision rendered by the Copyright Royalty Board (“CRB”). He suggested that there was “a serious constitutional issue” with the way judges are appointed to the CRB. Judge Kavanaugh further wrote that “under the Appointments Clause, principal offices of the United States must be nominated by the President and confirmed by the Senate.” Judge Kavanaugh wrote that the CRB had acted arbitrarily.

It will be interesting to see what impact a Justice Kavanaugh (or whoever becomes the ultimate replacement for Justice Kennedy) will have on the USPTO and intellectual property issues in general.

Photo of Tiffany Blofield Tiffany Blofield

View my professional biography

Although my initial career path was to be one of the Supremes (not the musically talented ones with platform shoes and sequins, but rather, the nine wearing sensible shoes and pressed black robes in DC), I will likely stay…

View my professional biography

Although my initial career path was to be one of the Supremes (not the musically talented ones with platform shoes and sequins, but rather, the nine wearing sensible shoes and pressed black robes in DC), I will likely stay in Minnesota as I have never lived anywhere else (though I have traveled across many borders, including the pond, and various state lines).

My calling to the courtroom, led me to earn my law degree from the University of Minnesota, after receiving my undergraduate degree in Economics and Psychology from St. Olaf College. After law school, I quickly realized that I’m more at ease in the courtroom than in my own living room, so I became a litigator. Over the years, I have developed my own style of litigating (I’m trying to trademark it) and aggressively represent my clients whether I am protecting valuable intellectual property or tackling the interests of professional athletes. Although I am not as wacky or as flaky as Ally McBeal, litigation still holds its “entertainment value” after fifteen years in the profession. This year’s Valentine’s Day festivities are evidence (pun intended) of my passion — instead of celebrating the typical Valentine’s Day with dinner and roses, our litigation team celebrated the seventh anniversary of the then largest jury verdict in Minnesota. The verdict came after a nine year battle and, as a result, V-Day has now become known as “Verdict Day.” I’m hoping to rename more holidays soon.

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  • Posted in:
    Intellectual Property
  • Blog:
    DuetsBlog
  • Organization:
    Winthrop & Weinstine, P.A.
  • Article: View Original Source

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