Supreme Court Split Gives Boost To IP Cases

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Publish Date:
May 6, 2016
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The Recorder
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Summary

For a short while, it appeared the U.S. Supreme Court was losing interest in intellectual property law. Following the blockbuster 2013-14 term that featured 10 IP decisions, the number dropped to five in 2014-15 and just three this term.

That downward trend appears almost guaranteed to reverse in 2016-17. With two cert grants this past week, IP already features in three of the 12 cases that the high court has scheduled for next term, and several more seen as cert-worthy are expected to hit the court’s conference by this fall.

In a glimpse of the potential implications beyond apparel, Stanford law professor Philip Malone filed an amicus curiae brief for three 3D printing companies urging the court to take up Star Athletica and resolve a messy dispute among appellate courts about when design can be considered “conceptually separate” from a useful object’s functionality, and therefore copyrightable.

“3D-printed objects that are purely ornamental and nonfunctional, such as an exact replica of a sculpture or a complex jewelry design, are protectable by copyright; designs that are purely functional useful articles, such as a basic wrench or a replacement gear, are not,” Malone wrote.

But the large area in between is murky, and “as the 3D printing industry expands, so will the number of copyright claims and disputes connected to physical objects that incorporate both creative and functional parts,” Malone wrote on behalf of Formlabs Inc., Shapeways Inc. and Matter and Form Inc.

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