High Court Lets Stand D.C. Circuit Court's Fix Of Copyright Royalty Board Appointments Statute

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A petition for a writ of certiorari was denied by the U.S. Supreme Court on May 28 in Intercollegiate Broadcasting System Inc. v. Copyright Royalty Board ( U.S., No. 11-1083, review denied 5/28/13), appealing the District of Columbia Circuit's ruling that a provision creating the Copyright Royalty Board violated the Appointments Clause of the Constitution but that severing the offending language was sufficient to cure the problem.

Intercollegiate Broadcasting System Inc. v. Copyright Royalty Board, 684 F.3d 1332, 103 U.S.P.Q.2d 1337 (D.C. Cir. 2012).

The circuit court determined that the relevant statute was defective because it gave to the librarian of Congress the power to appoint a “principal” officer of the United States, a power granted only to the president.

However, by striking a provision that limited the librarian's authority to remove copyright royalty judges, those judges became “inferior” officers, the court determined, thus eliminating the problem.

The petition was filed Jan. 25.

The following petitions for certiorari were recently filed:

• On May 16 in Intema Ltd. v. PerkinElmer Inc. ( U.S., No. 12-1372, review sought 5/16/13), appealing the Federal Circuit's ruling that the concept that two screening methods are better than one is based on mental activity and natural law and thus is not patentable subject matter. PerkinElmer Inc. v. Intema Ltd., 496 F. App'x 65, 105 U.S.P.Q.2d 1960 (Fed. Cir. 2012).

• On May 15 in ClearPlay Inc. v. Nissim Corp. ( U.S., No. 12-1365, review sought 5/15/13), appealing the Eleventh Circuit's affirmation of summary judgment in favor of a patent licensee. ClearPlay Inc. v. Nissim Corp., 496 F. App'x 963 (11th Cir. Nov. 14, 2012). In a related proceeding, the Federal Circuit ruled that a federal court cannot exercise jurisdiction over claims even if there is an underlying patent dispute, if resolution of the claims does not require resolution of the patent issue. ClearPlay Inc. v. Abecassis, 602 F.3d 1364, 94 U.S.P.Q.2d 1763 (Fed. Cir. 2010) (77 PTD, 4/23/10).

• On May 10 in Raylon L.L.C. v. Complus Data Innovations Inc. ( U.S., No. 12-1354, review sought 5/10/13), appealing the Federal Circuit's ruling that a patentee bringing infringement claims against 11 companies had no reasonable basis for believing that its claim construction arguments were reasonable and thus was subject to sanctions. Raylon L.L.C. v. Complus Data Innovations Inc., 700 F.3d 1361, 105 U.S.P.Q.2d 1355 (Fed. Cir. 2012).