Like 2012, 2013 promises to be a busy and significant year for intellectual property law.
The Supreme Court is slated to decide a number of IP cases, including: Already, LLC d/b/a Yums v. Nike, Inc. (addressing the significance of a limited covenant-not-to-sue on declaratory judgment jurisdiction); Bowman v. Monsanto (determining whether the Federal Circuit erred by not finding patent exhaustion in second generation seeds and created an exception to patent exhaustion for self-replicating technologies); Gunn v. Minton (pertaining to whether federal courts have exclusive “arising under” jurisdiction when legal malpractice claims stem from a patent case); Kirtsaeng v. John Wiley & Sons, Inc. (regarding international copyright exhaustion, i.e., how Section 602(a)(1) and Section 109(a) of the Copyright Act apply to a copy that was legally acquired abroad and then imported into the United States); Federal Trade Comm’n v. Watson Pharm., Inc. (involving whether Hatch-Waxman reverse payment settlement agreements are legal); and most recently, Ass’n for Molecular Pathology v. Myriad Genetics, et al. (regarding the patentability of human genes and whether the petitioners have standing to challenge those patents). A pending petition for certiorari is Retractable Techs., Inc. v. Becton, Dickinson and Co. (regarding whether a court may depart from the plain and ordinary meaning of a claim term and whether claim terms are subject to de novo review on appeal). Following the Federal Circuit’s en banc decisions in Akamai and McKesson regarding induced infringement by multiple actors, it is possible that a petition for certiorari will be filed shortly in these cases.
The New Year will also see implementation of the first-to-file rule beginning on March 16, 2013, just as other provisions of the America Invents Act become the norm, such as the amendments to 35 U.S.C. § 102 regarding the definition of prior art.
We are also awaiting the launch of the Intellectual Property Exchange International, Inc. (IPXI) - the first exchange focused on IP.
Gibbons will continue to monitor these and other IP law developments. We wish all our readers a Happy New Year!