Intellectual Property Law Blog

Top IP Cases to Watch in 2017

January 10th, 2017

Top IP Cases to Watch in 2017By Keith A. Jones, Esq.

As 2017 gets underway, here are the top intellectual property lawsuits and legal disputes that we are watching.

SCA Hygiene Products AB et al. v. First Quality Baby Products LLC
The Supreme Court has agreed to hear this case to decide whether laches will remain a defense available to patent infringement defendants. Laches is an equitable doctrine that bars suits filed after an unreasonable delay. The case comes on the heels of a 2014 Supreme Court decision ruling the defense is not viable in copyright infringement cases. The case was argued in November 2016.

TC Heartland LLC v. Kraft Food Brands Group LLC
This case presents the Supreme Court with an opportunity to change the scope of the venue statute for patent litigation. Currently, patent infringement cases can be brought in any judicial venue where a defendant makes allegedly infringing sales. Many critics, including TC Heartland, argue this is an unreasonably broad reading of the statute that provides for excessive forum shopping. A narrowed interpretation of the statute may result in venue being proper only where the defendant resides or has a regular place of business. Commentators speculate that this could be nearly a death knell for the Eastern District of Texas, currently the most active patent litigation venue, and a boon for the District of Delaware.

Life Technologies Corp. et al. v. Promega Corp. et al.
In this case, the Supreme Court must determine whether shipping a component of a patented invention overseas to be assembled out of the U.S. can constitute patent infringement. Section 271(f)(1) of the Patent Act requires that “all or a substantial portion of the components” of a patented invention be supplied from the U.S. The case will therefore turn on the Court’s interpretation of “substantial,” which the Federal Circuit has ruled to mean “important.” The Court heard arguments in this case in December 2016.

Impression Products Inc. v. Lexmark International Inc.
This case presents review of an important Federal Circuit decision regarding patent exhaustion. The lower court held that foreign sales do not in any case exhaust U.S. patent rights, meaning that a subsequent sale into the U.S. can constitute infringement. It also held that it is permissible for a seller to place post-sale restrictions on further sales of the article. The Supreme Court heard arguments on both of these issues in December 2016. The decision in this case will impact the numerous industries in which companies sell products within and outside of the U.S. at differing prices, relying on their patent rights to prevent the goods sold for lower prices in foreign countries from being imported into the U.S.

Samsung Electronics Co. Ltd. et al. v. Apple Inc.
The Supreme Court recently made headlines when it struck a $400 million award over Apple’s design patents, sending the case back to the Federal Circuit for a damages calculation based on the Supreme Court’s new interpretation of the damages statute, which states that damages in design patents are the total profit made from the “article of manufacture” using the protected design. The Supreme Court held that this is not necessarily the final product, but that the article of manufacture can sometimes just be the infringed components. The Federal Circuit was left to come up with its own test for making this calculation.

Lee v. Tam
The Supreme Court will hear arguments in this trademark case on January 18, 2017. The case centers around the rock band The Slants and their right to obtain a trademark on their name. The USPTO refused registration based on Section 2(a) of the Lanham Act’s prohibition on registration of “disparaging” marks. This is the same provision that caused the revocation of registrations for the Washington Redskins. Registrants such as the Slants argue that the statute violates the First Amendment right to free speech. Also implicated in this case is a party’s ability to enforce common law trademark rights without a registration. We’ve previously written about this case and its implications.

Belmora LLC v. Bayer Consumer Care AG
The Supreme Court is also set to decide whether to hear this case regarding the Lanham Act’s jurisdictional limitation to issues of American commerce. German pharmaceutical company Bayer AG uses the brand name Flanax to market in Mexico the drug it calls Aleve in the U.S. Bayer does not have trademark registrations to Flanax in the U.S., nor has it used the name here. However, it used Belmora LLC for trademark infringement in the U.S. after Belmore started using the name in the U.S. to market the drug to new immigrants from Mexico. The Fourth Circuit Court of Appeals ruled in Bayer’s favor under an unfair competition theory.

Star Athletica LLC v. Varsity Brands Inc.
The only currently scheduled copyright case in front of the Supreme Court regards cheerleader uniforms, or, more broadly, whether clothing designs can be protected by copyright. Traditionally, clothing was considered a “useful article” not covered by copyright law. In this case, the Sixth Circuit appellate court ruled that the decorative elements such as chevrons and stripes on the uniform were “conceptually separable” from the garment and therefore protectable under copyright. An affirmance by the Supreme Court would be greatly beneficial to fashion companies, who have long complained that they do not receive sufficient intellectual property protection in the U.S.

Oracle America Inc. v. Google Inc.
The Court of Appeals for the Federal Circuit is set to hear this massive software copyright case, in which Oracle accused Google of infringement worth $8.8 billion for copying some of Oracle’s Java code and incorporating it into the Google Android smart phone operating system. Google admitted to using the bits of code, but argued the so-called application programming interfaces (APIs) did not warrant copyright protection. The Federal Circuit ruled otherwise in 2014, but left open a fair use defense for Google. This past May, the district court judge ruled that Google was entitled to fair use of the code, which is the issue now set for review this year.

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