This article surveys significant developments in intellectual property (IP) law during the past year (2015 or the Survey period). This article reviews IP law developments that are likely to be influential in the evolution of Texas IP jurisprudence. Thus, the cases cited focus on the decisions of the U.S. Supreme Court and the U.S. Court of Appeals for the Federal Circuit. For developments in copyright and trademark law, the U.S. Court of Appeals for the Fifth Circuit’s authority is binding. Other circuits, such as the Second Circuit, are considered highly persuasive. Decisions from the Federal Circuit during the Survey period are included in this article because all cases concerning a substantive issue of patent law are appealed to that court.
The Supreme Court was quite active in the IP field since the last Survey period (2014) ended, deciding five cases involving IP issues and granting writs of certiorari on two others. In patents, the Supreme Court showed particular interest in whether a patent owner may collect a royalty on a patent after the patent expires. The Supreme Court also considered whether an infringer’s good-faith belief in the invalidity of a patent is a defense to induced infringement. In addition, the Supreme Court determined what standard of review the Federal Circuit should apply when reviewing claim construction rulings. The Federal Circuit also made important developments to its patent law jurisprudence.
In copyright, the U.S. Court of Appeals for the Second Circuit decided whether Google’s scanning, storage, and display of millions of books falls within the “fair use” defense to copyright infringement. The Second Circuit also determined that music publishers could not selectively offer blanket licenses covering their music libraries to negotiate for better royalty rates from new media platforms, such as Pandora.
In trademark, the Supreme Court found that a district court could make a finding of issue preclusion grounded in a prior agency decision. The Federal Circuit held a provision of the Lanham Act, which allows the United States Patent and Trademark Office (USPTO) to deny a trademark registration on the basis that the applied-for mark would disparage a group of people, unconstitutional under the First Amendment.
David L. McCombs, et al., Intellectual Property Law, 2 SMU Ann. Tex. Surv. 237 (2016)