On May 21, 2024, the United States Court of Appeals for the Federal Circuit (the “Federal Circuit” or “court”) issued an en banc opinion, affirming-in-part, vacating-in-part, and remanding a United States Patent and Trademark Office, Patent Trial, and Appeal Board (“Board”) decision that the prior art, including U.S. Design Patent No. D773,340 (“Lian”) did not render unpatentable Appellee GM Global Technology Operations LLC’s (“GM”) U.S. Design Patent No. D797,625 (the “D’625 patent”), pursuant to 35 U.S.C. §§ 102 and 103. LKQ Corp. v. GM Glob. Tech. Operations LLC, No. 2021-2348, __F.4th__, 2024 WL 2280728 (Fed. Cir. May 21, 2024). The en banc court affirmed the Board’s § 102 decision of no anticipation but vacated and remanded its § 103 decision of nonobviousness because the court overruled the long-standing Rosen-Durling test. Id. 

On March 27, 2024, the United States Court of Appeals for the Federal Circuit (the “Federal Circuit”) issued an opinion, affirming a United States District Court for the Northern District of Illinois (the “district court”) decision relating to U.S. Patent Nos. 7,676,411 (the “’411 patent”); 7,813,996 (the “’996 patent”); 6,766,304 (the “’304 patent”); and 6,772,132 (the “’132 patent”), (collectively, the “patents-in-suit”). The district court held the asserted claims of the ’411 and ’996 patents invalid, and a jury found the asserted claims of the ’304 and ’132 patents valid and infringed and awarded $6,610,985 in damages. The Federal Circuit affirmed. Brumfield, Tr. for Ascent Tr. v. IBG LLC, No. 2022-1630, __F.4th__, 2024 WL 1292151 (Fed. Cir. Mar. 27, 2024). 

On April 5, 2021, the Supreme Court of the United States issued an opinion reversing a decision by the Court of Appeals for the Federal Circuit (CAFC) that had found Google liable for copying elements of Oracle’s Java computer code.  Google LLC v. Oracle Inc., No. 18-956, 593 U.S. ____ (2021).  According to the Court, Google’s copying, which was limited to only those lines of code needed to enable Java programmers to create new and transformative programs, was a fair use as a matter of law.

On June 24, 2019, the United States Supreme Court granted certiorari to review whether a decision by the Patent Trial and Appeal Board (PTAB) to institute an inter partes review (IPR) is an appealable decision.

On Monday, March 4, 2019, the United States Supreme Court issued an opinion affirming a dismissal of the plaintiff’s copyright claim. Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, 586 U.S. ____ (2019). The Supreme Court held that a copyright plaintiff may not commence a lawsuit until after the Register of Copyrights officially registers the copyright.

On January 22, 2019, the United States Supreme Court issued an opinion affirming a decision by the Court of Appeals for the Federal Circuit (CAFC) that the Leahy-Smith America Invents Act (AIA) did not change the “on sale” bar.  Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA, Inc., 586 U.S., case no. 17-1229.  The Supreme Court held that a commercial sale to a third party may still place the invention “on sale” under 35 U.S.C. § 102(a)(1) of the AIA, even if the third party was required to keep confidential the details of the invention.

On June 22, 2018, the United States Supreme Court reversed the Court of Appeals for the Federal Circuit (CAFC) on the issue of whether damages suffered overseas can be recovered as remedy for infringement under the U.S. patent laws. WesternGeco LLC v. ION Geophysical Corp., 585 U.S. ____, case no. 16-1011. The Supreme Court ruled that such damages can be recoverable.

On April 25, 2018, the United States Supreme Court ruled on two cases concerning inter partes review (“IPR”) proceedings:  Oil States Energy Svcs. v. Green’s Energy Grp., case no. 16-712, and SAS Inst. Inc. v. Iancu, case no. 16-969.  In the first case, the Court ruled that IPRs can be a Constitutionally permissible way for the Patent Office to revoke already-issued patents, and in the second case, the Court ruled that the Patent Office is required to rule on either all or none of the patent claims challenged in a request for IPR.

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On April 16, 2018, the United States Supreme Court heard oral argument in the case of WesternGeco LLC v. ION Geophysical Corporation, which presents the question whether a patent owner can recover damages suffered outside of the United States for infringing acts that occurred within the United States.

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On April 6, 2018, the United States Court of Appeals for the Federal Circuit (“CAFC”) issued an opinion affirming an examiner’s rejection of various patent claims in an inter partes reexamination. Knowles Elec. LLC v. Iancu, case no. 2016-1954.  The United States Patent and Trademark Office (“PTO”) had intervened in the appeal to defend the examiner’s rejection.  In its opinion, the CAFC ruled that the PTO had standing to defend the examiner’s rejection even though the petitioner in the inter partes reexamination had abandoned the appeal.
 

On February 9, 2018, the United States Court of Appeals for the Federal Circuit (“CAFC”) entered an order transferring the appeal in a Walker Process antitrust action to the United States Court of Appeals for the Fifth Circuit.  Xitronix Corp. v. KLA-Tencor Corp., ___ F.3d ___ (appeal no. 2016-2746).  Despite language in earlier decisions suggesting the contrary, and over both sides’ objections, the CAFC held that patent law is not a necessary element of a Walker Process claim, and that therefore the CAFC lacked subject-matter jurisdiction over the appeal.

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On February 1, 2018, the Patent Trial and Appeal Board (PTAB) of the United States Patent and Trademark Office, faced with a motion to stay proceedings pending resolution of the patent owner’s bankruptcy filing, entered an order requiring further briefing and requiring the parties to report on the bankruptcy court’s view of whether the automatic-stay bankruptcy statute applies to inter partes review (IPR) proceedings.  Twitter, Inc. v. Youtoo Techs., LLC, case no. IPR2017-00829, paper no. 27. 

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On November 27, 2017, the U.S. Supreme Court heard oral argument in two cases dealing with the United States Patent and Trademark Office inter partes review (IPR) proceedings that were created in the America Invents Act in 2011.  IPRs have been a frequent topic of discussion in the U.S. intellectual-property community since they began; the general impression is that they are a very useful and very effective way of invalidating issued patents, but there is also concern among patent owners that IPRs may be too effective, invalidating patents that a District Court judge or jury would have upheld.

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