Intellectual Property Law Year in Review - March 2018

McDermott Will & Emery

This year was a significant year for intellectual property cases at the Supreme Court level. In fact, the Supreme Court granted certiorari for seven patent cases, and decided five of these cases before the end of the year. These cases ranged from issues regarding proper venue to laches defenses. Currently, the court is hearing arguments related to whether or not the inter partes review (IPR) proceedings at the United States Patent and Trademark Office (USPTO) are constitutional. As for trademarks, the Supreme Court issued a controversial decision that attempted to solve the clash between longstanding trademark registration rules and the First Amendment. This year saw many Supreme Court decisions that changed the legal landscape of certain issues within intellectual property law, and the Court is showing no signs of slowing down as 2018 approaches.

Looking Back at 2017 -

In 2017, the Supreme Court and Federal Circuit issued numerous decisions that caused significant changes to the practice of intellectual property law. First and foremost, the Supreme Court’s decision in TC Heartland LLC v. Kraft Food Brands Group LLC rattled the field of patent law on the subject of venue. In this case, the Supreme Court held that patent infringement suits can only be filed where the defendant is incorporated or the defendant has committed acts of infringement and has a regular and established place of business. Before this case, Federal Circuit case law effectively allowed a plaintiff to file patent suits anywhere a defendant made sales. This led to a large concentration of cases being filed in the plaintiff-friendly Eastern District of Texas, a problem most famously addressed by comedian John Oliver on his show “Last Week Tonight with John Oliver.” Through this holding, the Supreme Court discarded decades of precedent regarding venue selection.

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