Tuesday, November 13, 2012
A couple of years ago, Chief Justice Roberts presided over our College of Law’s moot court competition and our faculty held a reception in his honor. After being introduced to the Chief Justice as our faculty’s one and only patent person, he turned to me and asked, “Are we getting our patent cases about right?” Flustered, I answered, “I think so, sir. They're difficult cases and your opinions are very thoughtful.” I’ve been thinking about this very brief exchange quite a bit these days. The Court has four more intellectual property cases on its docket this term: Kirtsaeng v. John Wiley & Sons (whether copyright exhaustion applies to works purchased legally overseas and imported), Already, LLC v. Nike, Inc. (whether a covenant not to sue for trademark infringement moots a declaratory judgment counterclaim for invalidity), Bowman v. Monsanto Co. (whether the first sale doctrine precludes infringement liability for using seeds produced by GMO plants purchased under a limited license) and Gunn v. Minton (whether federal courts and the Federal Circuit have jurisdiction over a legal malpractice claim involving an underlying patent case). The court has already heard arguments in Kirtsaeng and Already: the transcripts can be found here and here. These cases (copyright and trademark, respectively) likely will have implications for patent law, and Bowman and Gunn address two patent issues that have been percolating in the Federal Circuit and lower courts for some time.
Will the Court get these cases “about right”? We’ll soon find out.
(The Chief Justice was very gracious, by the way. It was a memorable exchange.)
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