Top Tens in 2016: Patent, Trademark, Copyright and Trade Secret Cases

McJohn, Stephen | October 1, 2017

The Supreme Court issued several rulings that affect incentives in patent law. The Court relaxed the standard for the award of treble damages, narrowed the damages awards for infringement of design patents, and upheld key parts of the new procedures for challenging the validity of patents before the United States Patent and Trademark Office (USPTO). After numerous decisions holding claimed inventions to be outside patentable subject matter in the wake of the Supreme Court’s 2014 Alice decision, the Federal Circuit rejected some challenges on those grounds, evincing a split among the circuit’s judges on the bounds of patentable subject matter. Several decisions affected legal boundaries: whether federal copyright law preempted state law rights for resale royalties and right of publicity, and whether trade secret law preempted claims for unjust enrichment. Courts continue the trend to limit injunctions, where parties have delayed or seek overbroad orders. Trademark decisions stretched the limits of the Lanham Act, to reach foreign sales of goods bought in the US and protection of foreign marks within the US, as well as to trigger nationwide US trademark protection upon the most minor use of a mark. In copyright, evergreen issues include the scope of fair use and the conditions for immunity for internet service providers. Trade secret saw a new federal trade secret act, along with cases on all the major elements of trade secret misappropriation in such areas as beehive foraging and bacon cooking. This paper uses the collection of cases to conjecture a little on cognitive factors that affect judicial reasoning. Judges have the same cognitive biases as other humans. We can read judicial decisions, speculatively, with an eye toward how the judges unconsciously seek cognitive ease. The paper also discusses how the holdings of some cases may affect the subsequent decision process in some intellectual property matters.