by Dennis Crouch
Oral Argument set for October 7, 2020 in Google v. Oracle.
- (1) Whether copyright protection extends to software code and the organizational structure of a programming language; 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.
- What is the role of the Jury in deciding fair use? (Raised by the Court)
- What is the role of patents in the protection of a software code? (Raised by Crouch)
- Following its first conference, the Supreme Court has denied certiorari in a number of patent cases. In particular, the court has denied certiorari in all the patent cases ready-for-conference with the notable exception of the Arthrex cases focusing on appointments clause issues are still pending.
- Still Pending:
- Constitutional challenge to Admin Patent Judges: United States v. Arthrex, Inc., No. 19-1434; Smith & Nephew, Inc. v. Arthrex, Inc., No. 19-1452; Arthrex, Inc. v. Smith & Nephew, Inc., No. 19-1458; Polaris Innovations Limited v. Kingston Technology Company, Inc., No. 19-1459. These cases remain the most likely for certiorari.
- Retroactive application of IPR to already applied-for patents: Arthrex, Inc. v. Smith & Nephew, Inc., No. 19-1204.
- AIA Challenge: Sanofi-Aventis Deutschland GmbH v. Mylan Pharmaceuticals Inc., No. 19-1451;
- Divided Infringement and 271(g): Willowood, LLC v. Syngenta Crop Protection, LLC, No. 19-1147.
- Federal vs State Law for Patent Licensing: Cheetah Omni LLC v. AT&T Services, Inc., No. 20-68.
- Right to a Jury Trial on Specific Performance of FRAND license: TCL Communication Technology Holdings Limited v. Telefonaktiebolaget LM Ericsson, No. 19-1269.
- Patent Eligibility: 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.
- Due Process Issues Regarding Sua Sponte Judicial Order: Ameranth, Inc., Petitioner v. Domino’s Pizza, LLC, No. 19-1351.
- Appealing IPR Termination:BioDelivery Sciences International, Inc. v. Aquestive Therapeutics, Inc., fka MonoSol RX, LLC, No. 19-1381.
- Power of PTO To Exclude Patent Attorney: Polidi v. Lee, No. 19-1430; Piccone v. United States Patent and Trademark Office, No. 19-8844.
- Obviousness – Nexus for Secondary Indicia: SRAM, LLC v. FOX Factory, Inc., No. 20-158.
This Week’s Conference:
- Voiding a patent after a damage award: Phazzer Electronics, Inc. v. Taser International, Inc., No. 19-1378
- Arthrex Appointments Issue: Essity Hygiene and Health AB v. Cascades Canada ULC, et al., No. 20-131; ESIP Series 2, LLC v. Puzhen Life USA, LLC, No. 20-228; Customedia Technologies, LLC v. Dish Network Corporation, et al., No. 20-135 (also eligibility question)
- Trade Secret Inventorship Question and Federal Jurisdiction: Acer America Corporation, et al. v. Intellisoft, Ltd., (Bruce Bierman), No. 20-313.
- The “Respondent” has a right to file a response to a petition for writ of certiorari. However, as a strategy (and money saving device), many repondents waive their right. In cases of interest, the Supreme Court will often request a response. However, the request for response need only be requested by a single Justice. And, some of the justices have reportedly given authority to their law clerks to file the request.
- Recent CFR’s
- Are the Fed. Reserve Banks “People” or “the Government”: Bozeman Financial LLC v. Federal Reserve Bank of Atlanta, et al., No. 20-333
- Reasonable Royalty and Apportionment: Cochlear Corporation, et al. v. Alfred E. Mann Foundation for Scientific Research, et al., No. 20-362
- Notice and Damages: Arctic Cat Inc. v. Bombardier Recreational Products Inc., et al., No. 20-355