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U.S. Supreme Court

Supreme Court Is Hearing a Greater Percentage of IP Cases as Its Docket Shrinks

Posted Oct 16, 2012 10:41 AM CDT
By Debra Cassens Weiss

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As of Monday, the U.S. Supreme Court had agreed to hear only 48 cases this term, part of a shrinking-docket trend.

The smaller docket is likely well known among Supreme Court watchers. “What might not be quite so obvious,” SCOTUSblog says, “is the relative rise of intellectual property cases on the court’s docket.” So far this year, the court has agreed to hear “four core IP cases,” amounting to 8 percent of the argument calendar.

The blog tallied the IP percentages in past years: 5 percent of the docket in the 2011 term and 6 percent in the 2010 term. IP cases were only 4 percent of the docket 10 years ago, and 2 percent of the docket 20 years ago.

This year’s IP cases are:

Kirtsaeng v. John Wiley & Sons. At issue is whether a former grad student is liable for infringement for selling textbooks in the United States on eBay that he purchased cheaply overseas.

Bowman v. Monsanto Co. At issue is whether an Indiana farmer is liable for infringement because he planted herbicide-resistant second-generation soybean seeds purchased from a grain elevator.

Gunn v. Minton. At issue is whether federal courts have exclusive jurisdiction in legal malpractice cases involving patent law.

Already LLC v. Nike. At issue is whether a federal court has jurisdiction in a trademark challenge if the registrant promises not to assert the mark against the opposing party's existing commercial activities. The cert petition (PDF) includes drawings of two sets of athletic shoes, one depicting the asserted trademark and the other the “accused shoe.” Nike had claimed infringement by Already, the maker of YUMS shoes, then dropped its suit and agreed not to sue when Already challenged Nike’s trademark, according to a story published earlier this year by Thomson Reuters News & Insight.

Related coverage:

New York Times: "The Patent, Used as a Sword"

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