The U.S. Supreme Court has denied certiorari in American Axle v. Neapco Holdings, Inc., leaving it up to Congress and the U.S. Patent and Trademark Office (USPTO) to restore any semblance of clarity on U.S. patent eligibility law for now. Many expected that the Court would grant the petition after the U.S. Solicitor General in May recommended granting review. The SG’s brief said that inventions like the one at issue in American Axle have “[h]istorically…long been viewed as paradigmatic examples of the ‘arts’ or ‘processes’ that may receive patent protection if other statutory criteria are satisfied” and that the U.S. Court of Appeals for the Federal Circuit “erred in reading this Court’s precedents to dictate a contrary conclusion.”
There are not many trademark cases that are of equal interest to high fashion, the art world and cutting-edge tech. The ongoing “MetaBirkin” lawsuit is unusual, however, in that it involves a designer brand and two of the latest, trending topics – non-fungible tokens (NFTs) and the metaverse. In a case that has bagged global attention, luxury design house Hermès is suing artist Mason Rothschild in New York for trademark infringement and dilution, misappropriation of its BIRKIN trademark, cybersquatting, false designation of origin and description, and injury to business reputation.
Today, many companies make the business decision to infringe patented technology instead of paying a royalty to license it—so called efficient infringement. The calculation is that it will ultimately be less expensive to ignore the patent rights of innovations than to take a license in an arm’s length negotiation. Over the last 15 years, that calculus has largely proven correct, with changes to numerous laws and the introduction of additional administrative processes all conspiring to make it easier to challenge issued patents. This means that litigation is often the only way for an innovator to protect valuable intellectual property and to stop infringement. Unfortunately, lacking leverage and financial resources, many patent owners cannot stop infringement—in some instances, even after a jury trial.
The U.S. Court of Appeals for the Federal Circuit (CAFC) today reversed a decision of the U.S. Patent and Trademark Office’s (USPTO’s) Trademark Trial and Appeal Board (TTAB) that had canceled two marks for Thums Up cola and Limca lemon-lime soda owned by Meenaxi Enterprise, Inc. The CAFC held that Coca-Cola had not established a statutory cause of action based on lost sales or reputational injury under Section 14(3) of the Lanham Act and thus reversed the decision. Judge Reyna wrote separately in concurrence but said he would have focused the inquiry on the territoriality principle and the well-known mark exception, rather than lost sales and reputational injury among U.S. consumers, as the majority did.
Last night, the Chairman and the Ranking Member of the Senate Judiciary Subcommittee on Intellectual Property published an op-ed in The Hill on the important role the Patent Trial and Appeal Board (PTAB) plays in the U.S. patent ecosystem, and expressed their commitment to strong patent rights as a necessity for American innovation to flourish. “In order to ensure America’s continued dominance in all areas of innovation, we must have strong patent rights,” Senator Patrick Leahy (D-VT) and Senator Thom Tillis (R-NC) wrote. “However, for our patent rights to truly be strong, they have to be based on high-quality patents… The Patent Trial and Appeal Board (PTAB) plays a critical role in this process and is a necessary backstop to invalidate truly low-quality patents that do not represent true innovation and never should have been issued.”
The U.S. Patent and Trademark Office (USPTO) announced today that certain intellectual property (IP)-related transactions are now authorized in Russia, following publication by the U.S. Department of Treasury’s Office of Foreign Assets Control (OFAC) of General License No. 31. The authorized transactions include the filing and prosecution of any application to obtain a patent, trademark, or copyright, as well as renewal and maintenance fees.
The U.S. District Court for the Northern District of California this week ruled that the safe harbor provision of the Digital Millennium Copyright Act (DMCA) protects Pinterest from a photographer’s claim that the platform infringed his copyrights by displaying his works alongside advertisements in the form of “promoted pins.” Harold Davis, an artist and professional photographer, claimed that Pinterest infringed 51 of his copyrighted works. In one example, Davis’ work, “Kiss from a Rose,” was displayed next to a promoted Pin for an art print called “White Tea Roses by Neicy Frey,” which Davis contended constituted unauthorized commercial use of his work.
The United States Patent and Trademark Office (USPTO) has a massive backlog of patent applications (typically in the hundreds of thousands). Indeed, the average wait for patent applicants to receive any substantive response from the USPTO is 19.4 months, and the wait is growing. (See chart below). Because of this situation, there has been a need for patent applicants to accelerate the process. The USPTO has obliged and provides several options discussed here for patent applicants to consider.
The U.S. Patent and Trademark Office (USPTO) has published its study on patent eligibility jurisprudence in response to a March 2021 request from Senators Thom Tillis (R-NC), Mazie Hirono (D-HI), Tom Cotton (R-AR) and Chris Coons (D-DE). The study, titled “Patent eligible subject matter: Public views on the current jurisprudence in the United States,” is based on more than 140 comments received following a USPTO request of July 9, 2021, and unsurprisingly concluded that many (mostly larger) high-tech and computer-related companies like the current state of the law; life sciences, startups and SMEs do not; but everyone agrees that consistency, clarity and predictability are needed. The study did not make any recommendations, and indicated that the Office will be continuing to solicit feedback via listening sessions and written comments and that it is also broadening the scope of stakeholders it reaches out to.
On June 28, the U.S. Court of Appeals for the Federal Circuit (CAFC) issued a precedential decision in Static Media LLC v. Leader Accessories LLC reversing a contempt finding entered in the Western District of Wisconsin over alleged violations of a protective order from a design patent infringement case between Static and Leader. Circuit Judge Jimmie Reyna authored a brief dissent from the majority opinion, arguing that Leader’s disclosure of certain confidential information with another company sued by Static for the development of a joint defense strategy was a violation of the district court’s protective order.
A group of patent practitioners told the Supreme Court on Thursday that a case involving a patent for a type of content player would be a better vehicle for unraveling the patent eligibility problem than American Axle & Manufacturing v. Neapco Holdings, which has been awaiting a brief of the U.S. Solicitor General for about one year now. The case is Interactive Wearables, LLC v. Polar Electro Oy and Polar Electro, Inc. Interactive Wearables petitioned the High Court in March 2022.
On April 28, Google’s General Counsel Halimah DeLaine Prado authored a post published on Google’s official blog to voice concerns felt by one of the world’s richest corporations that the U.S. patent system is currently in a state of growing crisis. The post offers several suggestions, each sanctioned by Google, as to steps that can be taken in all three branches of the U.S. federal government to address patent quality, abusive litigation and forum shopping. Unfortunately, the proposed reforms would help very little, if at all, toward improving certainty and clarity in patent rights in a way that would actually improve American innovation by supporting small startups and individual inventors in our country. Indeed, any informed observer of the U.S. patent system would recognize that Google’s proposed reforms would instead do a great deal to advance Google’s own business interests ahead of those startups and individual inventors who need the patent system to work in order to survive.
As part of the ongoing confirmation process for Judge Ketanji Brown Jackson to the U.S. Supreme Court, Senator Thom Tillis (R-NC) submitted a number of questions for the record, including 35 IP-related questions on topics ranging from patent eligibility to anti-suit injunctions and 15 antitrust questions, to which Judge Jackson recently responded. While Tillis voted against Judge Jackson’s appointment to the U.S. Court of Appeals for the D.C. Circuit Court due to concerns about her judicial philosophy, he recently indicated that she has the appropriate temperament for the Supreme Court. The Senate Judiciary Committee is voting on Jackson’s confirmation today.
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