Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. Since our last update three new petitions have been filed. One presents questions related to the Lanham Act, one presents a question related to patent law, and one comes in a pro se case. Two waivers of right to respond to petitions have been filed. One comes in a trademark case, and one comes in a patent case. A brief in opposition was filed in a case presenting a question related to the Lanham Act, and an amicus brief was filed in the same case. Here are the details.
Granted Cases
There are no cases pending at the Supreme Court that were previously decided by the Federal Circuit.
Pending Petitions
New Petitions
Since our last update, three new petitions have been filed in cases decided by the Federal Circuit.
Vetements Group AG filed a petition in Vetements Group AG v. Stewart presenting the following questions:
- “Whether protection of a non-English mark is controlled by consumer perception of the mark taken at face value or controlled by its English translation.”
- ”What is the proper test for determining genericness or descriptiveness of a non-English mark.”
CeramTec GmbH filed a petition in CeramTec GmbH v. CoorsTek Bioceramics LLC presenting the following question:
- “Whether under this Court’s decision in TrafFix Devices, Inc. v. Marketing Displays, Inc., 532 U.S. 23 (2001), a utility patent that produces a product with a wide array of designs is ‘strong evidence’ that every aspect of every design produced by practicing the patent is functional rather than arbitrary, incidental, or ornamental.”
In Maddox v. United States, a pro se party filed a petition.
Waivers of Right to Respond
Since our last update, parties filed two waivers of right to respond to petitions.
The government filed a waiver in Foster, APC v. Stewart, a trademark case.
ShieldMark Inc. filed a waiver in Lowe v. ShieldMark, Inc., a patent case.
New Brief in Opposition
Since our last update, Double Diamond Distribution, Ltd. filed its brief in opposition to the petition in Crocs, Inc. v. Double Diamond Distribution, Ltd. The petition asked the court to consider:
- “Whether the Lanham Act’s prohibition on ‘misrepresent[ations]’ as to ‘nature, characteristics, [or] qualities’ extends to misrepresentations about the product’s intangible properties, like its patent status.”
In its brief in opposition, Double Diamond Distribution argued the case’s “interlocutory posture is reason enough to deny certiorari.” It explains “Crocs is effectively asking this Court to review the denial of summary judgment.” But, says Double Diamond Distribution, the Court’s “established practice is to await final judgment in the lower courts before exercising [its] certiorari jurisdiction.” Anyway, Double Diamond Distribution claims, there is no circuit split. Moreover, it says, “[t]here is no good reason to think the Federal Circuit’s ruling is the ‘speech-stifling’ ‘watershed’ Crocs imagines it to be.”
Amicus Brief
Since our last update, an amicus brief was submitted by the Accessories Council in support of the petitioner in Crocs, Inc. v. Double Diamond Distribution, Ltd., the case discussed above. The Council argued “the Federal Circuit’s decision below threatens important public values underlying the patent system and the First Amendment.” The Council suggested “the Federal Circuit’s decision will chill amicus’s members and other design companies from enforcing their patent rights.” According to the Council, moreover, the “Federal Circuit’s decision will chill amicus’s members and other design companies from engaging in protected commercial speech.” The Council agreed that a circuit split exists, and argued the Federal Circuit’s ruling is in the minority.