Saturday, March 15, 2014

Intellectual Property Cases Are High On Supreme Court’s To-Do List

By Dineen Pashoukos Wasylik

The Supreme Court this term is hearing a record high of eight intellectual property cases ― 11.4 percent of the court’s docket, according to Reuters.  Be on the lookout for decisions in the following important cases:


American Broadcasting Companies, Inc. v. Aereo, Inc., No. 13-461: The issue presented is whether a company “publicly performs” a copyrighted television program when it retransmits a broadcast of that program to thousands of paid subscribers over the Internet. Oral argument is set for April 22. 

Petrella v. Metro-Goldwyn-Mayer, Inc., No. 12-1315.  The court heard argument on January 21 in this case, which considers whether the defense of laches can apply to copyright claims brought within the statute of limitations. The plaintiff’s claim was decades old, but she only sought damages for the most recent three years. At oral argument in February, the court seemed skeptical of the limited claim.


Limelight Networks, Inc. v. Akamai Techs., Inc., No. 12-786.  Can one induce patent infringement if there is no underlying direct infringement? This so-called “divided infringement” has become more of an issue as patent owners struggle to enforce patents applicable to the Internet. The court is scheduled to hear argument on April 30.

Highmark, Inc. v. Allcare Management Sys., Inc., No. 12-1163; and Octane Fitness v. ICON Health and Fitness, No. 12-1184.  In both Highmark and Octane, the court is considering the application of the exceptional-case finding under 35 U.S.C. § 285. Both petitioners are defendants arguing that the Federal Circuit is too rigid in its application of the standard, depriving prevailing defendants of attorneys’ fees awards to which petitioners argue they should be entitled. Oral argument was held February 26.  The decision has the potential to affect trademark cases as well, since the Lanham Act also uses an “exceptional-case” standard.

Medtronic, Inc. v. Boston Scientific Corp., No. 12-1128. In the only IP case so far to have an issued decision, the Supreme Court unanimously reversed the Federal Circuit on the issue of who bears the burden of proof when a licensee seeks a declaratory judgment against a patentee to establish that its products do not infringe the licensed patent. The court ― in an opinion strongly admonishing the Federal Circuit for failing to apply “simple legal logic” ― held that the patentee bears the burden of persuasion on the issue of infringement.

Nautilus v. Biosig Instruments, No. 13-369.  In Nautilus, the court will wrestle with the issue of how definite and precise a patent claim must be to constitute a valid claim. The case promises to be important to patent litigators and prosecutors alike. The court is scheduled to hear argument on April 28.

POM Wonderful LLC v. The Coca Cola Co., No. 12-761. POM Wonderful requires the court to clarify the intersection between the Lanham Act’s unfair and deceptive trade practices provisions and the Food and Drug Administration’s labeling requirements. Can a private party challenge an FDA-compliant label under the Lanham Act? Oral argument is scheduled for April 21.