In their landmark decision on May 22nd, the Supreme Court decided 8-0 in favor of TC Heartland over Kraft Foods Group, changing the dynamics of patent litigation across the country. In the case itself, Kraft sued TC Heartland, claiming that TC Heartland had infringed on Kraft’s patent for the low-calorie water sweetener, MiO.  The Court held that the defendant could only be sued in the state in which it was incorporated.  Earlier this week, the House Judiciary Committee’s Subcommittee on Courts and Intellectual Property held a hearing on the impact of the TC Heartland decision, and heard testimony that although the TC Heartland decision is helpful, it is not a panacea for litigation abuse.

Yesterday, the Supreme Court unanimously reversed a decision of the Federal Circuit in the long-running iPhone litigation between Apple and Samsung and we, the Software & Information Industry Association (SIIA), welcomed it.  The Federal Circuit had held that when a design patent is infringed, the plaintiff is entitled to the total profits from the infringing product—even where the infringing product has many components.  The lower court had permitted Apple to recover all of the profits from the sale of infringing Samsung Galaxy phones, despite the fact that the allegedly infringed elements were minor ornamental components of the overall product. 

Yesterday, the Supreme Court heard arguments in the long-running Samsung v. Apple design patent litigation and took special note of the technology industry’s concerns.  The Court was reviewing a decision from the United States Court of Appeals for the Federal Circuit holding that someone found to infringe a design patent could be liable for all of the profits made from the infringing product, even if the reason that consumers bought the product was in substantial part because of its functionality.   (We wrote previously about that here. The reason for the lower court’s holding stemmed from the language of 35 U.S.C. 279, which says, in relevant part (emphasis added):

For the past several years, SIIA has been trying to persuade Congress to change patent law to make it more difficult for non-practicing entities (e.g., trolls) to shake down technology businesses.   What we don’t need is additional court decisions that make matters worse.   To that end, SIIA, along with several leading tech companies, filed an amicus brief in the Supreme Court urging it to reverse the Federal Circuit’s decision in Apple v. Samsung.  (For those of you that are curious, the Federal Circuit decision is here). Apple and Samsung have been battling in court for the past several years over design patents, which cover only non-functional aesthetic elements of a particular product.   A person who uses that design without an authorization is an infringer, in the same way that someone who used Apple’s “slide to unlock” feature without a license would owe them a royalty.   Where the two kinds of patents ...

Menendez Wants FCC to Clarify Set-Top Box Plan’s Copyright Protections (Morning Consult Tech) Senator Bob Menendez (D-NJ) asked FCC Chairman Tom Wheeler to address concerns that third-party companies will not be able to abide by contracts which govern content, advertising, and channel placing when they enter the cable marketplace.  The proposal to open set-top box markets for third-party manufacturers was passed in February and has since been the cause of many copyright and privacy concerns.

When online services have infringing movies, music, books, or other works placed there by their users, what should they be required to do?  In 1998, Congress passed a statute (the Digital Millennium Copyright Act) that created a notice-and-takedown system: online service providers (OSPs) would disable access to infringing works when they knew about them through a proper notice from a copyright holder, or when the service provider has actual knowledge or is aware of facts or circumstances from which infringing activity is apparent, and in return would face a limitation on remedies in the event that a copyright infringement suit was filed.  Of course, the internet looks very different now than it did in 1998.   The early offerings of CompuServe and AOL pale in comparison to modern cloud computing services.   Works can be placed back online within seconds of an OSP taking them down, and a single web site can receive thousands of notices for the same work in a ...

Senate Easily Passes Trade Secrets Bill (The Hill) On Monday, the Senate passed  the Defend Trade Secrets Act on a 87-0 vote which would provide damages for U.S. companies affected by IP theft. Coalition of Artists, Music Groups Call for US Congress to Reform Digital Millenium Copyright Act (Tech Times) The Recording Industry Association of America is asking Congress to reform the DMCA. RIAA is claiming that parts of the law are “obsolete, dysfunctional, and harmful.” $85 million patent verdict, largest ever against Google, Wiped Out on Appeal (Ars Technica) An East Texas jury ordered Google to pay $85 million to a patent troll company called SimpleAir.  Since then, a panel of three judges from the US Court of Appeals for the Federal circuit held that Google did not actually infringe. ACA Seeks Help with Digital Millennium Copyright Act (Broadcasting & Cable) The American Cable Association filed comments with the Copyright Office regarding DMCA sa ...

Sharing Knowledge for a Price (New York Times) SIIA was featured in a spotlight of letters to the editor regarding free access to research journals papers.  The letter was in response to an article that ran in the Times titled, “Should All Research Papers Be Free?” Judge Delays Latest Apple v. Samsung Patent Trial (San Jose Mercury News) On Tuesday, U.S. District Judge Lucy Koh decided to postpone a retrial on damages questions in the infamous 2012 Apple v. Samsung patent case. New York Senator Proposes Tax Credit for Open-Source Developers (The Register) A New York Senate Bill would allow open-source programmers to reclaim twenty percent of the out-of-pocket cost of building and sharing open-source code.  However, the rebate only allows for a maximum annual benefit of $200 per person. Reps. Renew Effort to Troll for ‘Patent Trolls’ (Broadcasting & Cable) Reps. Tony Cardenas and Blake Farenthold introduced a bipartisan bill called the ...

On Monday, The New York Times published a letter to the editor from SIIA in a spotlight titled, “Sharing Knowledge for a Price.” This letter was in response to an article that ran in the times titled “Should All Research Be Free?” Concerning research papers, many believe that the public has a right to access and pursue knowledge while at the same time giving little consideration to the copyrights involved.  Copyright enforcement is critical in the protection of quality content.  As SIIA's Senior Vice President for Public Policy, Mark MacCarthy, writes in his letter to the editor,