January 13, 2014 | By Daniel Nazer

Supreme Court to Tackle Big Questions in Patent and Copyright Law

Last Friday the Supreme Court granted certiorari in three important cases. This means a busy spring for EFF as we will likely file amicus briefs in all of them.

In ABC, Inc., v. Aereo, Inc., the Court will decide whether Aereo “publicly performs” television programs it streams over the Internet to users from individual antennas. TV networks complain that Aereo is "retransmitting" free-to-air stations without a license. They insist that while Joe Citizen can put an antenna on his roof and run a wire to his TV, he can't rent an antenna from Aereo and replace the wire with the Internet. The case raises a number of complex legal questions. But, as we have explained before, it is a classic example of legacy industries demanding that the law protect their business model from competition. We hope the Supreme Court will affirm the Second Circuit’s pro-innovation decision.

In Limelight Networks v. Akamai Technologies, the Court will decide whether a company can be found liable for inducing patent infringement when no single entity infringes the patent. When this case was before the Federal Circuit, we filed an amicus brief explaining that allowing divided infringement was contrary to the Patent Act and would create a new category of potential defendants: third-party users, consumers, and customers, i.e., a group that is likely to lack knowledge of the patent laws and the resources to mount a defense. Unfortunately, the Federal Circuit disagreed. We hope the Supreme Court will restore the sensible rule that only a single entity (or its agents) can infringe a patent.

In Nautilus v. Biosig Instruments, the Court will consider the Patent Act’s requirement that patent claims must be clear and distinct. For years, the Federal Circuit has tolerated vague patent claims. This has encouraged patent applicants to craft vague claims that they can stretch to cover later technology. These vague patents—which are especially prevalent in software—are the favorite tool of patent trolls. Together with Public Knowledge, filed an amicus brief urging the Supreme Court to take this case and restore the Patent Act’s requirement that patent claims be clear.

Friday’s orders show that the Supreme Court is paying close attention to patent law. The Court has granted certiorari in six patent cases this term, including Octane Fitness v Icon Health (fee-shifting) and Alice Corp. v CLS Bank (abstract software patents). Taken together, its decisions in these cases could help slow the flood of low-quality software patents that has fueled the rise of patent trolls. We’ll work hard to convince the Court to reach this result.


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