Independence Day Round–Up

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Independence Day Round–Up


A post–4th–of–July review of recent developments in patent litigation:

  • Supreme Court declares independence from patent cases. As the Supreme Court closed out a memorable 2014 term, we note that the Court has not accepted any patent cases for its 2015 term. Although there are a few cert. petitions percolating, it appears that patent law will not be front and center in the high court as it has been for the past several years, during which the Federal Circuit has faced heightened Supreme Court scrutiny.
  • Ultramercial v. Hulu ends not with a bang, but a whimper. It appears that the Federal Circuit’s ruling that Ultramercial’s patented method for presenting copyrighted media products over the Internet for free in exchange for viewing an advertisement is truly dead—by which we mean, patent–ineligible. After two round trips between the Federal Circuit and Supreme Court, the high court has denied a third petition for a writ of certiorari, leaving intact the most recent panel opinion that the Ultramercial patent is not drawn to patentable subject matter under Alice. Thus ends one of the earliest test cases of the effects of Alice on Federal Circuit jurisprudence—a patent that was held to be patent–eligible pre–Alice could not survive in a post–Alice world.
  • The customer is right to rely on Kessler. The Kessler doctrine is a 100+–year old rule that puts up a barrier to a patent–asserter’s bringing a lawsuit for patent infringement against a customer if that patent–asserter has already lost on non–infringement or invalidity in a lawsuit against the seller of the same product. Until last week, however, it was unclear whether the customer itself could assert that defense in its own right, or only the seller could raise the defense as an intervenor or in a separate action. In Speedtrack v. Office Depot, the Federal Circuit held that a customer can raise the Kessler doctrine on its own. The Court concluded, “Allowing customers to assert a Kessler defense is consistent with the Court’s goal of protecting the manufacturer’s right to sell an exonerated product free from interference or restraint.”
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