Posts Tagged: "SCOTUS"

Supreme Court Denies Patent Petitions on Arthrex, Eligibility

On November 16, the U.S. Supreme Court denied petitions for certiorari in two cases from the Federal Circuit: IYM Technologies LLC v. RPX Corporation and Advanced Micro Devices, Inc. and WhitServe LLC v. Donuts Inc. IYM asked the Supreme Court to grant review “to determine whether the Arthrex decision applies to all appeals that were pending when [the Arthrex decision] issued.” In the WhitServe petition, WhitServe asserted that a determination of patent ineligibility “necessitates impermissible fact-weighing at the pleading stage and eviscerates the statutory presumption of validity.”

What SCOTUS’ Decision to Scrutinize Social Security Act Appointments Clause Case Means for Arthrex

Last week, an order list issued by the U.S. Supreme Court indicated that the nation’s highest court had granted a pair of petitions for writ of certiorari which were then consolidated into Davis v. Saul. The petition in Davis asks the Supreme Court to determine whether claimants seeking disability benefits or supplemental security income under the Social Security Act (SSA) must exhaust their Appointments Clause challenges with the administrative law judge (ALJ) at the agency in order to obtain judicial review of that challenge in federal court. Given the Appointments Clause challenge to the Patent Trial and Appeal Board (PTAB) proceedings at issue in Arthrex v. Smith & Nephew, many patent practitioners are interested in the Supreme Court’s ultimate decision on whether such challenges can be brought up for the first time on appeal from agency proceedings when parties first claim that constitutional challenge while seeking judicial review in federal courts.

Skidmore Seeks a Second Chance at SCOTUS in Led Zeppelin Copyright Case

On October 30, Michael Skidmore, Trustee for the Randy Craig Wolfe Trust, filed a petition for rehearing of the denial of its August 6 petition for writ of certiorari to the Supreme Court. In the original petition, Skidmore requested that the Supreme Court review a March judgment of the U.S. Court of Appeals for the Ninth Circuit siding with Led Zeppelin in a long-running case examining whether the opening notes of the band’s legendary song “Stairway to Heaven” infringed the song “Taurus,” written by Robert Wolfe of the band Spirit, a contemporary of Led Zeppelin. Skidmore brought the original suit in 2014. In the petition for rehearing, Skidmore claims that the “Ninth Circuit’s en banc opinion herald[ed] the ‘death of music copyright,’ just as happened to literary copyright before it.”

The Troll Narrative Infected the Supreme Court and Justice Kennedy was the Vector

An untold story of the patent “reform” era is how the High Court (as well as the Congress) blithely accepted an exaggerated narrative spun by the PR campaign of the Coalition for Patent Fairness (CPF). It might have been more accurately named the “Coalition for Patent Weakness.” That is what its massive PR/lobbying campaign relentlessly sought and the result CPF members ultimately got, including at the Supreme Court. But how did it happen? To see it emerging, one need only look at three opinions of retired Justice Anthony Kennedy:  eBay in 2006, KSR in 2007 and Bilski in 2010. Then compare his many factual assertions, although unsupported, except for two, to the widely publicized narrative of the CPF.

Misguided: USPTO Examination Guide Misses the Mark on Booking.com

Last week, the U.S. Patent and Trademark Office (USPTO) released its long-awaited Examination Guide on so-called generic.coms – domain names comprised of generic elements along with a generic top-level domain (such “gTLDs” include .com, .net, .org, .biz and .info). The Guide (No. 3-20, entitled “Generic Terms after USPTO v. Booking.com”) provides needed guidance to trademark examiners on how to apply the U.S. Supreme Court’s decision in USPTO v. Booking.com B. V., 140 S. Ct. 2298 (2020); it also provides guidance to trademark applicants on the standards they can expect the USPTO to apply in considering whether their domain names are registrable as trademarks. Unfortunately, instead of faithfully applying the Supreme Court’s lesson about the importance of consumer perception in assessing whether a term functions as a trademark, the USPTO has relied on factors close to its discredited per se rule that will make it very difficult to register such marks.