What Judge Alito Thinks About… Copyright, Patents and Privacy

Law – With rulings that exercise judicial restraint and deference to precedent, Supreme Court nominee Judge Samuel Alito’s record as an appeals court judge presents a mixed bag for technology executives.

On copyright and intellectual property issues, Alito’s decisions set a high bar for companies to prove that their processes or systems have been copied or adopted illegally, according to legal experts. Such an approach could be good news for CIOs as they remake their companies’ business processes. But Alito’s record on privacy and electronic surveillance is thin, raising questions about how he might decide cases involving the theft or seizure of corporate data. (Alito’s Senate confirmation hearings begin Jan. 9.)

One of Alito’s decisions about copyright infringement, Southco v. Kanebridge, offers clues about how he might rule on such issues as business-process patents. Southco, a manufacturer of screws and bolts that labels its products with numbers, sued its competitor, Kanebridge, for copying its numbering system. Writing for the majority on the U.S. Court of Appeals for the Third Circuit, Alito ruled that Southco’s numbering system lacked creativity or originality and therefore was not protected. He referenced a Supreme Court ruling against a telephone book publisher that sued another company for using the same system for listings in its phone book.

That ruling and Alito’s use of precedent holds significance for business executives, according to William Swiggart, a lawyer with Swiggart & Agin who represents technology companies. “One thing that every lawyer who works with businesses is looking for is predictability,” said Swiggart.

On privacy and surveillance issues, Alito’s record is scanty, says Benham Dayanim, a privacy attorney with Paul, Hastings, Janofsky & Walker. Although Alito has sided with government authorities in some criminal cases involving surveillance, Dayanim cautions against reading too much into those rulings. He says such cases don’t indicate how Alito would rule in cases involving collection of electronic information under the Patriot Act and similar law enforcement mandates.