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What Tech Cases Remain Before the Supreme Court?

By Casey C. Sullivan, Esq. on March 07, 2016 | Last updated on March 21, 2019

Are there really only two months of Supreme Court oral arguments left? It's seems like just yesterday that the term was kicking off. Now it's winding down, with one less justice but a few mayor tech cases on the horizon.

If you're a technology-focused attorney, here are two cases to keep your eyes on in the upcoming months.

Under § 505 of the Copyright Act, a district court, "in its discretion," may award attorneys' fees to a prevailing party. But the contours of that discretion vary circuit to circuit. In the Ninth and Eleventh, attorney's fees are generally award when the prevailing party has "advanced the purposes" of the Copyright Act. In the Fifth and Seventh, there's a presumption for attorneys' fees. In the Second Circuit, courts look at a variety of factors, with "substantial weight" given to whether a party's claim or defense was "objectively unreasonable."

Which approach is right? Does it matter? We might know after the Court rules in Kirtsaeng v. John Wiley & Sons, scheduled for argument on April 25th. The case stems from a dispute over the resale of copyrighted books. John Wiley & Sons, a publishing house, sued Supap Kirtsaeng for selling cheap, foreign editions of its textbooks in the U.S. Kirtsaeng won in the Supreme Court -- the Court found he was covered by the first sale doctrine -- but the Second Circuit declined to award attorneys' fees, finding that Wiley's arguments weren't unreasonable. Will they be overruled again?

The Reach of Inter Partes Review

Inter partes review, in which the Patent Trial and Appeal Board hears challenges to the patentability of a claim, is becoming increasingly common. Where there were just a handful of IPR disputes heard in 2012, there were nearly 1,800 before the Board last year.

One upcoming Supreme Court case, Cuozzo Speed Technologies v. Lee, could have a major impact on this growing area of IP disputes. The case looks at:

1) how broadly the Board can construe claims in an issued patent; and

2) whether its decisions to institute an IPR proceeding are judicially reviewable.

As the petitioners in Cuozzo note, though IPR was designed as an alternative to litigation, the Board does not construct patent claims in the same manner as federal courts, leading to high rates of patent cancellation.

Like Kirtsaeng, Cuozzo is scheduled for April 25th. That's right; April 25th is IP Day in the Supreme Court this year, so be sure to mark your calendars.

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