Timothy Maier

IP Check-In On The Supreme Court Docket

There are currently multiple significant IP cases pending at the Supreme Court, including both the Oracle case and the Arthrex cases, and a number of petitions denied cert. Here are the latest case updates on IP at the Supreme Court:

Google v. Oracle

On October 7th, the Supreme Court heard oral arguments for the Google v. Oracle case on appeal from the Federal Circuit. The case centers around the Android operating system designed by Google in their first foray into the smartphone arena. In the coding, Google used 11,000 lines of the Java SE platform coding for common interface commands. Oracle, the current owner of the Java SE platform, filed suit on the basis that the use of the lines constituted infringement. While a jury found them to be “fair use”, the Federal Circuit disagreed, reversing the decision, and leading to the current appeal at the Supreme Court.

Accordingly, the questions before the Supreme Court now are:

(1) Whether copyright protection extends to a software interface; and

(2) whether, as the jury found, the petitioner’s use of a software interface in the context of creating a new computer program constitutes fair use.

The decision could be the most significant copyright decision in at least a decade and will be important to developers and practitioners alike to watch moving forward.

Arthrex

Earlier this month, the Supreme Court denied certiorari to a number of cases. Notably this does not include the Arthrex cases challenging the constitutionality of the USPTO’s Patent Trial & Appeal Board.

On October 14,, 2020, as predicted by Maier & Maier’s own, Steve Kunin, the Supreme Court granted cert in three related Arthex cases: (1) United States v. Arthrex, Inc. (19-1434), (2) Smith & Nephew, Inc. v. Arthrex, Inc. (19-1452), and (3) Arthrex, Inc. v. Smith & Nephew, Inc. (19-1458).

The case rests on the question of whether the Administrative Patent Judges (“APJ’s”) are principal officers or inferior officiers, and accordingly, whether their appointment is constitutional. Specifically, the Supreme Court has identified the following two questions for review:

(1) Whether, for purposes of the Appointments Clause, U.S. Const. Art. II, § 2, Cl. 2, administrative patent judges of the U.S. Patent and Trademark Office are principal officers who must be appointed by the President with the Senate’s advice and consent, or ‘inferior Officers’ whose appointment Congress has permissibly vested in a department head.

(2) Whether, if administrative patent judges are principal officers, the court of appeals properly cured any Appointments Clause defect in the current statutory scheme prospectively by severing the application of 5 U.S.C. 7513(a) to those judges.

Briefing and oral arguments, as well as likely amicus briefs will likely follow before these questions are resolved, and may be one of the first cases heard by any replacement for the late Ruth Bader Ginsburg on the Court.

Cert Denied

Unlike the pending Oracle and Arthrex decisions, the following cases have been denied certiorari by the Supreme Court and will not be heard on appeal:

      • BioDelivery Sciences International, Inc. v. Aquestive Therapeutics, Inc., fka MonoSol RX, LLC, No. 19-1381 (Appealing IPR Termination)
      • TCL Communication Technology Holdings Limited v. Telefonaktiebolaget LM Ericsson, No. 19-1269 (Right to a Jury Trial for Specific Performance of FRAND license)
      • Willowood, LLC v. Syngenta Crop Protection, LLC, No. 19-1147 (Divided Infringement and 271(g))
      • The Chamberlain Group, Inc. v. Techtronic Industries Co., No. 19-1299.; Thomas v. Iancu, No. 19-1435; Primbas v. Iancu, No. 19-1464; Morsa v. Iancu, No. 20-32 (Patent Eligibility)
      • Ameranth, Inc., Petitioner v. Domino’s Pizza, LLC, No. 19-1351 (Sua Sponte Judicial Order Due Process)
      • Polidi v. Lee, No. 19-1430; Piccone v. United States Patent and Trademark Office, No. 19-8844 (Exclusion of Patent Attorneys by USPTO)
      • SRAM, LLC v. FOX Factory, Inc., No. 20-158 (Secondary Indicia for Obviousness nexus)
      • Arthrex, Inc. v. Smith & Nephew, Inc., No. 19-1204 (Application of IPR decisions retroactively to related pending applications)
      • Cheetah Omni LLC v. AT&T Services, Inc., No. 20-68 (Licensing Patents under Federal & State law)

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