Knowledge Isn’t Enough: The Supreme Court Rejects Expansive Theory of Secondary Copyright Liability

Patent, Supreme Court

by Dennis Crouch

The Supreme Court today reversed the billion-dollar copyright verdict against Cox Communications, holding that an internet service provider (ISP) cannot be held contributorily liable for its users' copyright infringement simply because it knows about the infringement and continues providing service. Cox Communications, Inc. v. Sony Music Entertainment, No. 24-171 (U.S. Mar. 25, 2026).  Justice Thomas wrote the opinion for seven justices; Justice Sotomayor, joined by Justice Jackson, concurring in the judgment.

Unlike patent law, the copyright statute does not include a particular statutory framework for contributory infringement. For decades, however, the Supreme Court has attempted to treat the two doctrines in parallel - with copyright often borrowing elements from patent's statutory treatment of 35 U.S.C. 271(b) and 271(c).  In Cox, the court continued this approach and solidified contributory copyright liability to just two pathways: inducement and providing a service "tailored to infringement." Because Cox did neither, its continued provision of internet service to subscribers flagged as past and future infringers did not make it an infringer.  This case will now sit along side the court's prior key decisions in Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005), and Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984).

With oral arguments in Hikma Pharmaceuticals v. Amarin Pharma, No. 24-889, set for April 29, the Court's insistence that knowledge of infringement is not enough for secondary liability is a troubling signal for the branded pharmaceutical company trying to hold a generic manufacturer liable for induced patent infringement.

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The Tinderbox: A Framework for Skinny-Label Inducement Before the Supreme Court

Patent, Supreme Court

by Dennis Crouch

In Hikma v. Amarin, No. 24-889, the Supreme Court is focusing on the question of when does a generic manufacturer’s decision to sell a cheaper version of a drug cross the line into actively inducing infringement of the brand’s method-of-use patent? I have posted a new working paper to SSRN that proposes a framework for answering that question. Dennis Crouch, The Tinderbox: Market Structure, Skinny Labels, and Induced Patent Infringement (2026). The essay responds to, and builds on, Professors Jacob Sherkow and Paul Gugliuzza’s recent critique of the Federal Circuit’s approach. Jacob S. Sherkow & Paul R. Gugliuzza, Infringement by Drug Label, 78 Stan. L. Rev. 131 (2026). (more…)

The Razor Returns: AIPLA Tells the Supreme Court That Alice Step Two Has Revived the Pre-1952 ‘Invention’ Requirement

Patent, Patentable Subject Matter, Supreme Court

by Dennis Crouch

The American Intellectual Property Law Association has filed an amicus brief urging the Supreme Court to grant certiorari in United Services Automobile Association v. PNC Bank N.A., No. 25-853 (U.S. filed Mar. 2, 2026). The AIPLA brief does not focus on the particular merits of USAA's mobile check deposit patents. Instead, it frames the case as an opportunity for the Court to correct what the brief calls a historical regression: the Federal Circuit's application of the Alice/Mayo eligibility framework has revived the same subjective "inventive concept" inquiry that the Patent Act of 1952 was specifically designed to eliminate. The brief, filed by Barbara Fiacco and Valerie Orellana of Foley Hoag on behalf of AIPLA, traces this argument through more than a century of patent law, from the commingled eligibility/obviousness/definiteness standards of the 19th century through the 1952 reforms and back to the present "confusion."

USAA's petition presents two questions:

  • Whether the Federal Circuit has wrongly extended the "abstract idea" prohibition to cover concrete technological processes; and
  • Whether it has improperly held that computer-implemented inventions are patent-eligible only if they improve the computer's own functionality.

In 2025, the Federal Circuit reversed a $218 million jury verdict for USAA, holding that its claims directed to mobile check deposit using a handheld device were ineligible. The Supreme Court has signaled some interest by issuing a "Response Requested" and PNC's response is now due April 8, 2026, following an extension. See Dennis Crouch, USAA Petitions SCOTUS: Is Mobile Check Deposit Just an "Abstract Idea"?, Patently-O (Jan. 19, 2026).

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Today’s Supreme Court [Land] Patent Decision

Patent, Supreme Court,

by Dennis Crouch

Today the Supreme Court decided an interesting patent case in Brandt v. U.S. The patent at stake was a land patent that the Supreme Court here defined as "an official document reflecting a grant by a sovereign that is made public, or 'patent.'"

The case involved an 83-acre plot in Wyoming owned by Marvin Brandt. The U.S. government originally owned the land as part of the 1803 Louisiana Purchase.  In order to expand rail-road coverage in the US, the Government offered a free right-of-way to RR builders. General Railroad Right-of-Way Act of 1875.  In 1911, the Laramie Hahn's Peak & Pacific Railway Company (LHPP) took advantage of that offer and build a RR across the land that was later patented to Brandt's.  Thus, in 1976, when the Brandt's took fee simple ownership, that ownership was "subject to those rights for railroad purposes as have been granted to [LHPP], its successors or assigns."  Finally, in 2004, LHPP (now part of Union Pacific) removed its tracks and expressly abandoned its right of way. 

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