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Will the United States create a dedicated branch of the Supreme Court for…
Will the United States create a dedicated branch of the Supreme Court for adjudication of intellectual property cases, in the next 10 years?
Challenges
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Currently, Justices have Amicus Curiae - expert advisors. This has been used to mitigate knowledge gaps when they arise.
10-year pilot program – Signed by Obama in 2011, authorizes specialized training for district judges in an effort to mitigate the 37-58% overturn rate found in higher appellate courts from 1996-2004
The supreme court only hears 80-100 cases a year. Is it worth making a new branch dedicated to intellectual property law?
The changes would impact fundamental operations of the United States judicial system. It would likely require new appellate procedures and defining the probative value of decisions from the new and old branches.
If we add a specialized dedicated branch, is that branch the highest court of original jurisdiction and or appellate court?
The challenge is descriptive, estimative, complex and chaotic in nature.
A new Amendment is unlikely. There have been approximately 11,000 proposals since 1789, only 27 have been approved - last one in 1992 (27th Amendment). 1789-1992 is an AVG of 1 per 7.5 years, Approval average of 1 per 407 proposals.
Support
Intellectual Property Law is one the most expansive, complex and nuance filled domains to adjudicate.
Article 3 Section 1 of the USC also states that the Supreme Court can ordain or establish new courts
Article 1, section 8, clause 18 allows congress to define what "one" supreme court means. It can be defined as "one" supreme court with multiple branches.
There are alternative options such as specialized judicial panels for intellectual property at the district and circuit level courts. They can filter out the bulk of potential intellectual property cases requesting cert to the Supreme Court.
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Specialized appellate panels such as BAP's have been established at lower court levels to adjudicate over complex domains.
Failure to properly support intellectual property laws may infringe on personal rights according to article 1, section 8, clause 8 of the USC
The supreme court only hears 80-100 cases per year. In 2014, over 11% were associated to intellectual property cases.
This is likely due to the appointment of Chief Justice John Roberts who was formerly in the private sector of patent law.
Increased caseload. 23 cases heard from 2005-2013, 8 heard in 2014. (6 patent, 2 copyright) In addition, there were 2 cases that fell under the Lanham Act of 1946 (Trademarks).
Continued use of Amicus Curiae (expert advisors) to mitigate knowledge gaps, comes with inherent risk. The advisors may influence the judgement to benefit their industry.
When judgments at the district and federal circuit levels are concluded with poor understanding of IP laws, it further clouds the definition of those laws.
There are avenues like Article 5 in the USC that can initiate changes or additions to the constitution if it became necessary.
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