The Supreme Court is the highest law of the land. It takes years to get a case there if it even does make it there. Often times the precedent that comes out of there is still highly disputed. With the supreme court vacancy, this is only getting more complicated as two landmark intellectual property cases have made their way to the top.
The US Supreme Court this morning
granted cert in two intellectual property cases –
one patent and one copyright.
The court’s appetite for IP cases does not
appear to be dimming. Last week it heard oral arguments in the
Kirtsaeng cases, and will soon hear oral arguments
in the Samsung v Apple case involving damages.
Star Athletica v Varsity Brands
In Star Athletica v Varsity Brands, the court will wrestle
with the functionality doctrine in copyright law. The petition
was granted limited to question one presented by the petition,
What is the appropriate test to determine when a feature
of a useful article is protectable under § 101 of
the Copyright Act?
At issue in the case in whether Varsity Brands can enforce
its registered copyrights in its uniforms.
As we previously reported, the Sixth Circuit Court of
Appeals last year ruled that Varsity Brands’
designs could be separated from the utilitarian aspects of
cheerleading uniforms. Varsity Brands had sued Star, alleging
that it had copied its two-dimensional stripes, colours and
other ornamentation familiar to cheerleading uniforms. The
trial court had previously found that the designs were not
separable from the uniforms themselves.
Dorsey’s Michael Keyes noted
on The TMCA Blog: “While the case involves the narrow issue
of cheerleading uniforms, the Supreme Court’s
decision could have far-reaching effects beyond the land of
tumbles, flips, and pyramid displays. The ruling may very well
affect how federal courts analyse copyright protection
involving designs on any utilitarian objects, including
uniforms, automobiles, or coffee tables.”
The case involves the following designs, taken from
Star Athletica’s petition for cert:
SCA Hygiene Products v First Quality Baby Products
In SCA Hygiene Products v First Quality Baby Products, the
Supreme Court will consider the question:
Whether and to what extent the defence of laches may bar
a claim for patent infringement brought within the Patent
Act’s six-year statutory limitations period, 35
USC § 286.
This follows the Supreme Court in 2014 holding that laches
cannot be used to further shorten the copyright limitation
period in the Petrella v Metro-Goldwyn-Mayer case, also known
as the Raging Bull case.
Despite this ruling, the Federal Circuit in the SCA case
held that laches remain a viable defence and can bar
infringement claims accruing within the six-year limitation
period of Section 286. The ruling was split 6-5.
Patently-O blog notes that laches arises in patent and
copyright cases “more often than you might think” because of
the legal treatment of “ongoing” infringement.
Dennis Crouch on the Patently-O blog predicted: “Look for
the court to reverse the Federal Circuit’s ruling
based upon the historic interplay between equity and law. As in
Petrella, I expect that the court will base its decision on the
rule that that laches is a defence to equitable relief but does
not limit the recovery of legal damages. Although Petrella was
6-3, I expect that the dissenters will see the value in linking
patent and copyright regimes.”