11 For example, while its copyright precedent sensibly bars protection for mere facts, 12 the Court has treated similar limits in the patent context (for example, by disqualifying natural phenomena 13 and laws of nature 14 from protection) as matters of statutory interpretation. As the Article explains later, the Court’s own jurisprudence provides examples where it has failed to heed this basic principle. When exploration is relatively safe, by contrast-when dangers are distant-the Court should create paths. In deciding copyright and patent cases, when the Supreme Court knows that there are constitutional perils nearby-implicated by the case even if not directly posed by it-it ought to set up fences, not paths. This straightforward metaphor leads directly to this Article’s core normative claim. 9 But when the Court uses constitutional reasoning, it erects a fence: Absent a constitutional amendment, the legislature cannot alter the outcome. When it employs statutory interpretation to answer an intellectual property question, the Supreme Court charts a path-Congress is free, at least nominally, to override the decision through legislation. Fences, by contrast, constrain completely: The explorer cannot lawfully proceed any farther.
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Paths show the traveler (here, Congress) one possible course to follow, but the wanderer remains free to strike out on her own, perhaps at her peril.
Put simply, the difference between the Supreme Court’s copyright and patent precedent is the difference between creating paths and building fences. 7 This pattern has held true since the first Patent and Copyright Acts were passed in 1790, and shows no signs of changing, despite the hopes and pleas of scholarly commentators. Instead, the Court grounds its patent jurisprudence in statutory analysis, even when it treats analogous questions as constitutional ones for copyright. 6 The Court has displayed a willingness to demarcate the constitutional boundaries for copyright law and a reluctance to do so for patent law. 3 Although the two intellectual property (“IP”) doctrines often present similar questions, 4 and even though both flow from the same constitutional grant of authority to Congress, 5 the Court has shown a markedly different pattern in how it adjudicates copyright and patent cases.
In recent years, the Supreme Court has decided a number of high-profile patent and copyright cases, on topics ranging from jurisdiction 1 to subject matter eligibility 2 to the right to a jury.
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