The United States’ ever-changing intellectual property law continues to impact many sectors, such as pharmaceuticals and technology, and we’re already seeing its effects in 2022 on these industries and more.
Wegman Partners explains that the United States Supreme Court will be a major player this year in terms of patents because it will decide whether to reconsider the American Axle decision by the United States Court of Appeals for the Federal Circuit. This could potentially expand patent-ineligible subject matter to include certain conventional approaches to using mechanical devices.
Copyright law is also evolving, with US appellate courts attempting to apply the Supreme Court’s decision in Google v. Oracle tackling fair use in more traditional copyright settings.
Here’s a complete picture of IP law in 2022.
Will the Supreme Court Restrict Patent Eligibility?
The restrictions of Section 101 and subject-matter qualifications remain a contentious issue. Since the Supreme Court’s decision in Alice in 2014, federal district courts and the Federal Circuit are still struggling to determine the best approach to satisfying Alice’s two-part test. Fortunately, the Supreme Court has demonstrated a willingness to revisit this issue in the case of American Axle & Manufacturing Inc. v. Neapco Holdings.
The Federal Circuit determined that claims about a method of fabricating a shaft assembly of a drive-line system were simply an application of natural law. The claims specifically call for “tuning at least one-liner” for mass and stiffness and dampening certain vibrational modes by putting the liner into a drive shaft.
Despite American Axle’s claims that adequately tuning the liners required far more work, the Federal Circuit did find this to be a simple application of Hooke’s law. Chief Judge Kimberly Moore argued that the majority decision expanded Section 101 law and asked whether the majority’s stance should instead be based on enablement.
In May, the Supreme Court permitted the solicitor general to submit a brief about the case’s petition for certiorari, indicating that they may be willing to revisit the issue and provide additional assistance.
The ‘Purpose’ of a Work and its Transformative Use
The Supreme Court ruled in Google v. Oracle that Google’s use of 11,500 lines of declaring code was fair use, emphasizing the “purpose” of the use. However, as recent circuit court decisions have demonstrated, determining the “purpose” of artistic works may be more difficult than determining the “purpose” of software.
The Second Circuit ruled in March in The Andy Warhol Foundation v. Goldsmith that courts “should not assume the role of art critic” before deciding whether Andy Warhol’s use of a photograph of the musician Prince was eligible to make a series of works of art featuring the musician.
While the Supreme Court was concerned with the purpose of using Google’s software code, the Second Circuit stated that purpose is a less useful metric. Instead, their focus is assessing the transformative nature of works of visual art that, at a high level of generality, share the same overarching purpose (i.e., to serve as works of visual art).”
The dividing line between visual art and software code and the ability to identify the purpose of one versus the other should be kept in mind. The Warhol Foundation’s petition for writ of certiorari could result in the Supreme Court trying to clarify whether these various works must be examined differently.
As you can see, there have been some significant developments in the intellectual property world. From patent eligibility developments to fair use developments in more traditional copyright settings, 2022 is shaping into a significant year. We expect more developments in these crucial cases as we move closer to 2023.