Supreme Court IP Odds and Ends from Last Term: Cheerleaders, Professors and Sports
The U.S. Supreme Court, possibly swayed by the Royal
Manticoran Navy, will
decide if cheerleading uniforms deserve copyright protection. But 22 amicus
briefs backing Sequenom’s lost patent rights couldn’t convince the court to
reconsider its “law of nature” exception to patent eligibility.
The court’s recent session was marked by a slew of rejected IP
petitions, three decisions in four IP cases, and four petitions that were accepted
for hearing this coming fall-winter, including the copyright case.
Beyond the major decisions and trends, here are some
factoids regarding the court’s handling of petitions for review of IP issues in
- Of the court’s three IP-related decisions, the
U.S. government supported the losing side in two—but won when it was the
respondent on the right side of the “v.” in Cuozzo
v. Lee, where “Lee” is Patent and Trademark Office Director Michelle K.
- The court denied 32 petitions for review of IP
issues after respondents waived the right to oppose, a sign of complete
disinterest in over 40 percent of the denials.
- The PTO led the way with
involvement as a party in 10 different cases; it was a respondent in nine
patent cases and a petitioner in the trademark case Lee v. Tam. That, and three of the patent cases, are still in
- Apple was a respondent in four cases. One was
dismissed, two were denied and a whopper – Samsung’s $399 million design patent
damages challenge—is on the fall docket.
- Arthrex, Daiichi Sankyo and Interval Licensing
each had two petitions rejected. AOL and Apotex avoided review of two appellate
- The New York Intellectual Property Law
Association saw the court take the side opposite its four friend-of-the-court
- Petitions by professors or groups with
“professors” in the title didn’t back a winner either, raising the question of
whether Samsung should worry about the “50 Intellectual
Property Professors” in its corner so far. Of course, Apple is likely draw
its own group of academic supporters when briefs are due July 29.
- And, finally, sports figured in three cases. The
NFL cemented its right-of-publicity win against a class action by retired players
when the court rejected their petition. But the other two—the NCAA hoping to
overturn collegiate athletes’ right-of-publicity win and the Washington
Redskins hoping to get their trademark registration back—are still being
If the Supreme Court
decides it likes sports issues, maybe next term it will also have a chance to
“Free Tom Brady,” whose case, by most predictions, is likely to be denied
rehearing by the full Second Circuit any day now. A high court decision to take
the case—Brady and the NFL players union are expected to ask—and reverse the
appellate decision would be a win for cheerleaders—of the New England Patriots.
So long as professors stay out of it.