The Supreme Court, taking up
an issue that has puzzled lower courts, agreed on Monday to clarify
whether the design that is a part of a “useful article” is original enough to
gain its own copyright protection. In the case raising that issue (Star Athletica v.
Varsity Brands), the fight is over designs that are part of uniforms
or warm-up outfits for cheerleaders, but the potential impact could sweep far
more widely, especially in the garment industry.
In a second intellectual
property case that the Court accepted for review, the issue is whether the holder of
a patent who waits too long to defend its rights loses the option of
challenging an alleged infringement.
That question came up in the case
of SCA Hygiene Products
v. First Quality Baby Products, involving a dispute over
patents for disposable “adult diapers.” Both that case and the
cheerleader-uniform controversy will be heard and decided next Term.
The Court also turned aside a
challenge to the way that Seattle’s fifteen-dollar minimum-wage guarantee
applies to local companies that are affiliated with out-of-state franchise
networks. There was, as usual, no explanation for the denial of the case
(International Franchise Association v. Seattle).
The Star Athletica case involves a provision of
federal copyright law that makes a “useful article” — clothing, for
example — ineligible for copyright protection. But if part of it
represents a creative design, that might gain such protection. The
company that took the issue to the Justices said that lower courts have come up
with at least ten different ways to separate what can be copyrighted
from the rest of the article.
The petition argued that the
case “involves the most vexing, unresolved question in copyright law: how to
determine whether a feature of a useful article — such as a garment or piece of
furniture — is conceptually separable from the article and thus
protectable.” It noted that one appeals court had described this
challenge as a “metaphysical quandary.”
Varsity Brands has for years
dominated the market for cheerleader uniforms and warm-up clothing as sports
wear. Earlier, Varsity had failed to get its designs approved for
copyright by the federal office that holds that authority, but later the
company prevailed. Almost as soon as a new firm, Star Athletica, entered
the sports uniform business, Varsity sued for infringement of the
copyrights it had won.
A federal trial judge rejected
Varsity’s claim, finding that the copyright was for such design features as
chevrons, stripes, and patterns, but those could not be separated from a
cheerleader uniform, because such an item of sportswear was indistinguishable
from its design elements.
The U.S. Court of Appeals for
the Sixth Circuit, however, found that Varsity’s designs were entitled to
copyright. The court of appeals devised an unusual analytical
device — for intellectual property law — of deferring to the fact that the
company had a copyright from the government office. In addition, the
Sixth Circuit rejected nine other tests, fashioned by other courts of appeals,
on how to separate designs from the useful article of which they were a part.
The Court’s agreement to rule
on the SCA Hygiene Products case makes
that something of a sequel in the patent field to a 2014 ruling by the
Justices on copyright law — the six-to-three ruling in Petrella v.
Metro-Goldwyn-Mayer. In that decision, the Court ruled that the
doctrine of laches (informally, sitting on one’s hands rather than acting)
could not be used to shorten the three-year time limit that exists for filing a
copyright-infringement lawsuit.
In the new patent
case, the en banc U.S. Court of Appeals for the Federal Circuit,
acting in the wake of the Supreme Court’s Petrella ruling,
chose by a six-to-five vote to continue to apply the doctrine of laches to
patent-infringement claims. In patent law, if the holder of such rights
does not sue an alleged infringer within six years after the claim arose, the
holder loses the right to sue. But the Federal Circuit concluded that the
time could be shortened if the alleged infringer invokes the defense of laches.
SCA Hygiene Products is a
Swedish company that makes and sells underwear products for patients who suffer
from incontinence. In the United States, its products are sold under the
brand name “TENA.” The company has a U.S. patent on its design.
A rival firm, First Quality
Baby Products, makes a disposable version of such products, and sells them
under private labels. The two companies talked with each other about a
possible violation of the SCA patent, which led the Swedish firm to seek the
advice of the U.S. Patent and Trademark Office.
The PTO took almost three
years to respond, resulting in a decision in favor of SCA’s patent. SCA
in August 2010 sued First Quality for infringing on its patent, but that was
nearly seven months after SCA had first approached First Quality about an
alleged infringement. First Quality then sought to have the case dismissed,
relying upon the defense of laches.
A federal trial judge ruled in
favor of First Quality. SCA then appealed to the Federal Circuit, which
upheld First Quality’s laches claim. Relying on the Supreme Court’s
reasoning on that defense in thePetrella copyright
case, SCA sought en banc rehearing. That resulted in the split decision
adhering to the Federal Circuit’s prior view that an unreasonable delay in
suing for patent infringement results in the loss of the right to sue.
Among the new petitions that
the Justices chose not to review on Monday was one that could have drawn the
Court into the midst of an issue that has become a major question in the
presidential election campaign: the dispute over raising the minimum wage as a
means of reducing the gap in wages among workers who have lower-skilled jobs.
The city of Seattle has been a
leader in the move to raise the minimum-wage level, choosing to go to a
fifteen-dollar-an-hour minimum, to be raised in stages until it reached that
amount at the start of the calendar year 2021. The city ordinance,
adopted in June 2014, sets up two different schedules for the increases.
The first schedule, for
businesses with five hundred or more employees, provides for the minimum hourly
wage to rise more rapidly, starting out at eleven dollars, going to thirteen
dollars in the second year, and to the full fifteen dollars in the
third year. The second schedule, for companies with fewer than
five-hundred workers, sets a schedule starting at ten
dollars and rises more gradually, only reaching fifteen dollars in
2021.
The ordinance, however, treats
Seattle operators of franchises, even if they individually have fewer than
five hundred workers, as covered by the first schedule because they are a part
of a franchise network that overall employs more than five hundred people.
That part of the ordinance was
challenged by the trade group for franchise operators, the International
Franchise Association, with the argument that it discriminates against
interstate commerce because it discriminates against local companies solely if
they are aligned with an out-of-state network. That claim was rejected by
the U.S. Court of Appeals for the Ninth Circuit. There was no indication
of any dissent among the Justices to the denial of the case, International Franchise Association v. Seattle.
In another order on Monday
denying review, in the California death-row case of Boyer v. Davis, Justice Stephen G. Breyer filed another
in his continuing series of dissents from the Court’s failure to rule on
whether a prolonged stay on death row for a person convicted of murder violates
the Eighth Amendment’s ban on cruel and unusual punishment. In this
particular case, Richard Delmer Boyer, was originally sentenced to death
some thirty-two years ago.
No comments:
Post a Comment