SUPREME COURT IP ODDS AND ENDS FROM LAST TERM: CHEERLEADERS, PROFESSORS AND SPORTS

Cheerleader

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 2015-16:

  • 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. Lee.
  • 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 progress.
  • 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 wins apiece.
  • The New York Intellectual Property Law Association saw the court take the side opposite its four friend-of-the-court briefs.
  • 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 briefed.

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.