High Court Bulks Up on IP Cases

, The Litigation Daily


Aereo's micro antennae.
Aereo's micro antennae.

The U.S. Supreme Court agreed Friday to hear two patent cases and one high-profile copyright fight, bringing the number of IP disputes on its docket to an unusual high.

In a terse order, the justices agreed to hear copyright infringement claims against Aereo Inc., an online television start-up that has angered broadcasters by streaming their programs to subscribers through dime-sized antennas. The high court also granted cert in Akamai Technologies Inc. v. Limelight Networks Inc., which raises the question of whether tech companies can be liable if they induce patent infringement by third parties. Finally, the court took up Nautilus Inc. v. Biosig Instruments Inc., in which the fitness company Nautilus challenges the U.S. Court of Appeals for the Federal Circuit's approach to determining whether a patent is too indefinite. Our affiliate The National Law Journal has more on the cert grants here.

Even before Friday's ruling, the Supreme Court had an unusually high number of IP cases on its docket. The grand total now stands at five patent cases and two copyright cases.

On Oct. 1, the court agreed to hear two cases—Octane Fitness LLC v. Icon Health and Fitness Inc. and Highmark Inc. v. Allcare Health Management Systems Inc.—relating to whether losers in patent cases should pay their opponents' legal costs. Fee-shifting been a hot issue in patent circles, and the patent reform bill approved by the House of Representatives on Dec. 6 would adopt a more defendant-friendly standard.

"I think that the cases involving the standard for attorney fees and the Nautilus case reflect, at least in part, a growing awareness outside the IP community that poor- quality patents and abusive IP enforcement are serious problems," wrote Brian Love, an assistant professor at Santa Clara University School of Law, in an email.

Also on Oct. 1, the justices agreed to hear a copyright case called Petrella v. Metro-Goldwyn-Mayer Inc., which involves the 1980 boxing film "Raging Bull." The case poses the question of whether a copyright holder should automatically lose if they wait too long to assert their rights, as The National Law Journal's Marcia Coyle explained here.

Perhaps the most closely watched IP case on the court's docket is Alice Corp. v. CLS Bank International, which got the nod on Dec. 6. The entire Federal Circuit agreed to review that case in hopes of clarifying what sort of ideas are eligible for patenting, but ended up issuing a muddled six-part decision that provided little clarity. Many practitioners welcomed the cert grant in CLS Bank, but Kenneth Parker of Haynes and Boone, who isn't involved in the cases, said in an email that the patent bar should be careful what it wishes for.

"Previous efforts by the high court created more uncertainty and increased costs, not reduced them," Parker said. "Hopefully the court gets it right this time around."



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