Amicus Curiae Brief in Canada Hockey LLC v. Texas A&M University Athletic Department

Chair, Forum for Intellectual Property and Senior Fellow

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**Interest and Independence of Amicus**

Amicus curiae Adam Mossoff is a law professor who teaches and writes in patent law, copyright law, and constitutional law. He has an interest in promoting continuity in the evolution of these interrelated doctrines. His research has confirmed that courts have long secured under the United States Constitution the property rights in the fruits of productive labors of innovators and creators. He has no stake in the parties or in the outcome of the case. No one other than Mossoff and his counsel wrote this brief or parts of it, and no one other than Mossoff and his counsel contributed money intended to fund its preparation and submission.

Mossoff has moved for leave to file this brief.

Summary of Argument

The district court incorrectly held that the plaintiffs are precluded from pursuing their legal claims for takings and copyright infringement by the defendants. Substantial case law in the U.S. Supreme Court and lower federal courts reaching back to the early American Republic support that federal intellectual property rights are “property” under the U.S. Constitution. These precedents and authorities shed important light on the merits of the plaintiffs’ claims.

Patents and copyrights are “property” protected under the Fifth Amendment’s Due Process and Takings Clauses and the Fourteenth Amendment’s Due Process Clauset. The Supreme Court and lower federal courts have consistently held since the nineteenth century that intellectual property rights secured by Congress under the Constitution, see U.S. Const. art. I, § 8, cl. 8, are “property” under these constitutional provisions in protecting citizens against unlawful governmental action. See, e.g., Horne v. U.S. Dept. of Agriculture, 135 S. Ct. 2419, 2427 (2015), McKeever v. United States, 14 Ct. Cl. 396 (1878).

Today, many lawyers and judges have forgotten or misunderstood this extensive and binding case law affirming the constitutional protections afforded to federal property rights in patents and copyrights. See, e.g., Adam Mossoff, __Patents as Constitutional Private Property: The Historical Protection of Patents under the Takings Clause__, 87 B.U. L. Rev. 689 (2007) (detailing case law and explaining why it is forgotten today). Thus, this brief details these cases and authorities to better inform this Court’s analysis and decision in this case.

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