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The Supreme Court's Action And Inaction On Intellectual Property Matters Is Telling

Josh Conley \ July 18, 2019

The Supreme Court followed up its decision that permitted disparaging trademarks such as “Redskins” to be registered by upholding this week that “immoral or scandalous” trademarks also should be registerable.  

For those unfamiliar with the distinction, disparaging trademarks are marks that are directed at certain groups. On the other hand, scandalous trademarks are offensive because they are profane or explicit. For a deeper dive on the matter, check out my previous post.  Otherwise, just know that you can now file for registration on trademarks that use foul language.

This isn’t the only intellectual property issue the Supreme Court has on its radar.  In the realm of copyrights, the Court is set to hear the case involving whether legal texts can be copyrighted.  Typically, states will publish bare-bones text of statutes and decisions that are freely available to the public.  A more detailed version is also prepared that includes analysis, other citations, and annotations regarding the legal text.  This latter version is pay-to-access. Those familiar with the legal field know that the associated fees can be steep.

The Justices are also taking on the case related to time restrictions related to filing for a challenge to a patent before the USPTO’s Patent Trial and Appeal Board (PTAB).  The case arises from the Federal Circuit’s review of a challenge that the appeals court determined was untimely and could not move forward. The USPTO opposes this position and the barred challenger sought further review on the basis that the PTAB’s decisions on time-bar decisions should not be subject to the Federal Circuit’s review.

Although it seems the Supreme Court is hitting on each of the major areas of intellectual property—patents, trademarks, and copyrights—the high court’s refusals for review are equally as intriguing.  The Court has turned down the opportunity to evaluate multiple challenges to the current law pertaining to what subject matter can and cannot be patented. One particular challenge arose from a patent that met all statutory requirements for patenting except for being ineligible.  This is a nonsensical outcome for a patent application that presents an invention that is not only brand new but also not obvious in light of what is known in the state of the art.

Copyrights also got the cold shoulder on a case that is increasingly more important in the digital age.  The Court denied review of whether the first-sale doctrine applies to digital purchases. The first-sale doctrine is widely used by consumers every day when they resell their books, movies, albums, and paintings that are on a physical medium such as a CD or Blu-Ray disc.  Currently, the same does not apply to digitally acquired content. That means that the digital copy of Nicholas Cage’s The Wicker Man is yours, FOR-EV-VER.  

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