I would like to dissent from a recent trend that I see in IP. Two recent certiorari petitions (still pending) are asking the Court to get involved in doctrines that they have left alone for decades–the right of publicity and design patents. These petitions are supported by many scholars that I respect, but I submit that they are making a mistake in asking for this sort of intervention.
While there are significant First Amendment issues raised by the right of publicity, I see no indication that publicity law is working poorly and needs help for the Justices. Moreover, I see no reason to think that the Justices will actually be helpful in an area of law that they know nothing about. Design patent, I think, is the same story, though there the argument for Supreme Court action is even weaker given the absence of any constitutional concerns.
I’m not against asking the Supreme Court to decide IP cases. Far from it. With respect to utility patents, there was (and still is) a need to rein in the Federal Circuit’s errors and excesses. In the two areas that I’m highlighted, I think the Court will just mess things up and should stick with “Do No Harm.”