My apologies for the long absence, dear readers. Just as the U.S. Supreme Court is set to take its collective seat again for a new term this coming Monday, October 2, 2017, however, I am back with more intellectual property legal highlights.
In the past three or four years, the Supreme Court has been taking an increased interest in intellectual property cases, granting certiorari for more IP cases than ever before and coming down with landmark decisions across the IP legal spectrum. The 2017 term is already shaping up to be yet another high watermark. First, the Court has already granted a petition for certiorari for an important patent cases. The Justices will be faced with a constitutional challenge to the review procedures under the America Invents Act (AIA) under the “separation of powers” doctrine and the Seventh Amendment’s given right to a jury trial in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, No. 16-712.
Second, the Court has a full plate of other petitions for certiorari to consider in the new term on significant and divisive IP issues, including:
- the role of the patent specification in deciding patent eligibility, in Synopsys, Inc., v. Mentor Graphics Corporation, No. 16-1288;
- known interchangeability evidence for patent equivalence, in Tomita Technologies USA, LLC v. Nintendo Co., Ltd., No. 17-292;
- patent infringement through the performance of one or more steps of a patented process by multiple independent actors, in Voter Verified, Inc. v. Election Systems & Software LLC, No. 16-1505;
- issued copyright registration vs. filed application for filing an infringement suit, in Fourth Estate Public Benefit Corporation v. Wall-Street.com, LLC, No. 17A150;
- vicarious liability for copyright infringement, in Perfect 10, Inc. v. Giganews, Inc., No. 17-320;
- when copyright causes of action arise, in Olenicoff v. Wakefield, No. 17-56;
- Internet service providers’ liability for copyright infringement and the requirement of volitional conduct, in BWP Media USA, INc. v. T&S Software Associates, Inc., No. 17-122;
- whether a likelihood of confusion assessment in a trademark infringement suit is a question of law or fact, in Kibler v. Hall, No. 16-1365;
- the test for a parody fair use of a trademark with respect to trademark dilution, in Louis Vuitton Malletier, S.A. v. My Other Bag, Inc., No. 17-72;
- necessary pleadings with respect to trademark use in a motion to dismiss under Federal Rule 12(b)(6), in Kassa v. Detroit Metro Convention & Visitors Bureau, No. 16-1512; and
- online sellers’ liability for counterfeit sales by third parties, in Hart v. Amazon.com, Inc., No. 16-1549.
At least some of these issues have been mired in split-Circuit decisions, or even simply caught in the land of the undecided. Hopefully, the Court will offer some guidance.