“I hope the answer is that the Second Circuit’s decision was really egregiously wrong,” says Stanford Law professor Mark Lemley, who filed an amicus brief on behalf of art law professors. “It doesn’t just create a conflict with other circuits, but it creates a conflict with the Second Circuit’s own precedents.”
Lemley notes that Justice Stephen Breyer, who wrote the court’s opinion in Google and was an assertive voice on IP issues, participated in the cert grant before his retirement. Justice Ketanji Brown Jackson will take his place when the case is argued and decided. “So who knows?” Lemley said.
Indeed, four new justices have joined the court in the last five years, and none except Justice Neil Gorsuch has so far appeared eager to grab the IP steering wheel.
“We’re likely to have an entire new dynamic when it comes to IP. But we don’t know what that is yet,” Lemley said.Read More