Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today’s report includes highlights of amicus briefs filed in Google LLC v. Oracle America, Inc., a report on oral arguments heard before the Supreme Court in Romag Fasteners, Inc. v. Fossil, Inc., and a comment on the Supreme Court’s recent denial of certiorari in five petitions related to patent eligibility.
At PatentlyO, Dennis Crouch highlighted 28 amicus briefs filed since January 6 in Google LLC v. Oracle America, Inc., including one written by Crouch himself and Catherine Crump. Given the timing of his post, Crouch noted that all but two of the amicus briefs filed to date “support support reversal of one or both of the Federal Circuit’s copyrightability and fair use rulings.” Crouch highlighted “IBM’s brief with Red Hat arguing against the copyrightability of computer interfaces and Microsoft’s brief criticizing the Federal Circuit’s unduly rigid fair use analysis and indifference to the need for flexible rules that promote interoperability in today’s highly connected world.” (We previously reported on the Supreme Court’s grant of certiorari in this case as well as recent filings in the case, including Google’s opening briefs. You can find links to all filings on the case’s case page. This page is automatically updated with each filing in the case.)
Michael Risch at Written Description similarly highlighted his own amicus brief in the same case. Risch’s brief argues that “by framing this case as a pure copyrightability question, the courts have lost sight of the context in which we consider the protection of the API declarations.”
Scott Graham reported for Law.com on oral arguments heard Tuesday before the Supreme Court in Romag Fasteners, Inc. v. Fossil, Inc. According to Graham, the “Supreme Court sounded ready Tuesday to loosen up what some intellectual property lawyers contend is a rigid rule requiring a threshold showing of willfulness to recover infringer’s profits for a trademark violation.” Graham wrote that Jacqueline Lesser of Baker & Hostetler stated “the justices seemed to be suggesting that willfulness must play an important role in the award of profits, but not necessarily as a ‘gateway’ or a prerequisite.” (We provided an argument preview in this case last week, and an argument recap yesterday.)
Gene Quinn commented for IPWatchDog on the Supreme Court’s recent denial of “certiorari in five more petitions relating to patent eligibility challenges,” which brought “the total number of patent eligibility petitions denied by the Supreme Court to at least 48 since the Court issued its controversial, if not catastrophic, decision in Alice Corporation vs. CLS Bank.” Quinn wrote that “[i]t is alarming that the term abstract idea has remained undefined although it is central to the so-called Alice/Mayo framework.” Quinn pointed out that “[p]atent filings are down at the USPTO at a time when they are significantly up all across the world, and not just in Europe and China, but in Africa and the Middle East too.” (We similarly noted the significance of three of these denials, in Hikma Pharmaceuticals USA Inc. v. Vanda Pharmaceuticals Inc. and HP Inc. v. Berkheimer, on Monday.)