Does Registration Mean Registration: When Can Copyright Holders Sue?

Background

Copyright law protects the exclusive rights of creators of works—like novels, songs, computer software, and even fictional characters. These rights include the distribution and reproduction of copyrighted works and the power to assign or transfer those rights. In the United States, the copyright symbol “©” may serve to provide notice to potential infringers that the creator’s work is protected. But the symbol does not mean that the federal government specifically granted it copyright protections. Copyrights do not need to be registered with the federal government to be protected. Original works are under copyright protection once created and “fixed in a tangible medium of expression.” The owner of a copyright may register it at any time during (or before) the term of the copyright – usually 70 years after an individual creator’s death.

Issue

While registration is not required for copyright protection, it is required for filing a lawsuit to enforce a copyright. Before the enactment of the Copyright Act of 1976, copyright law varied from state to state and so did the conditions necessary for copyright enforcement. The act created a uniform system of copyright enforcement. Section 411 of the Copyright Act provides that “no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.” The statute prescribes steps in the registration process but does not define when “registration” has occurred to allow a copyright owner’s infringement suit. Courts are split on whether “registration” occurs upon submission of an application for registration (the “application approach”) or upon approval of the registration application (the “registration approach”).

The Split

In Cosmetic Ideas v. IAC (2010), the Ninth Circuit adopted the application approach, which relies more on the purpose of the statute than on a plain language interpretation of the text. In trying to interpret “registration” under § 411 of the Copyright Act, the Ninth Circuit started with the plain language of the statute and referred to § 101 of the Act which defines “registration” as “a registration of a claim in the original or the renewed and extended term of copyright.” The court concluded that the definition was “unhelpful” and provided no guidance in interpreting the meaning of “registration.” The court then examined the statute as a whole, finding ambiguity—it then concluded that the Act’s “plain language” unequivocally supported either interpretation, and that it must “go beyond . . . the plain language to determine which approach better carries out the purpose of the statute.” Ultimately, the court adopted the application approach, finding that its efficiency accomplished the central purpose of registration – a robust national register of existing copyrights.

On the other hand, in Fourth Estate Pub. v. Wall-Street.com (2017), the Eleventh Circuit adopted the registration approach. In Fourth Estate, the court based its reasoning primarily on the language of the Copyright Act. It reasoned that the text “makes clear” that the registration approach is correct. The Eleventh Circuit rejected appeals to the legislative history and the policy of the Act, finding that the Act’s words “are unambiguous” and no further inquiry is required.

Looking Forward

Despite the registration requirement’s prior treatment by circuit courts as jurisdictional, the US Supreme Court held in Reed Elsevier, Inc. v. Muchnick (2010) that not fulfilling the registration requirement does not deprive a federal court of subject matter jurisdiction over a case. However, the Court in Reed Elsevier did not tackle the circuits’ different approaches to defining registration. A resolution may nonetheless be on its way thanks to the Fourth Estate case. A petition for certiorari to the Supreme Court filed in October 2017 is currently pending. The Court has invited the Solicitor General to file a brief expressing the views of the United States on the case. There is a good chance that the Supreme Court will grant certiorari given that the case involves statutory interpretation and there is a clear circuit split. Otherwise, an amendment to the statute may be needed to resolve the issue.

 

Copying Music is Not Vogue

The Issue

Have you ever listened to a song and recognized the melody? Perhaps you have heard something similar in another song? Your first thought might be “they copied my favorite artist!” And you might be right. However, if the appropriate license is obtained, it is completely legal.

Sampling is the “actual physical copying of sounds from an existing recording for use in a new recording, even if accomplished with slight modifications such as changes to pitch or tempo.”[1] Sampling is a common occurrence in the music industry. After all, there are only so many combinations we can come up with using nine notes. This is why sampling music is allowed when it licensed.

Now, try to remember if you’ve ever thought the same way about a particular note or a sound in a song. Probably harder to discern. So, what happens if a sound is sampled? Does that violate copyright laws? The Circuits are split.

The Split

The Sixth Circuit

In Bridgeport Music, Inc. v. Dimension Films, the Sixth Circuit took a hard “[g]et a license or do not sample” approach. In doing so, it created a bright-line rule:

For copyrighted sound recordings, any unauthorized copying constitutes infringement, no matter how trivial.[2]

The Court took a “literal reading” approach towards its interpretation of §§ 114(a) and 106 of Title 17 of the United States Code, concluding that while imitating or simulating “the creative work fixed in a recording” is permissible, making an actual copy of any of its contents not. To support its reasoning, the Court made an analogy to pirated music: “If you cannot pirate the whole sound recording, can you ‘lift’ or ‘sample’ something less than the whole.” The Court answered no.

Furthermore, the Sixth Circuit rejected a de minimis analysis for the following reasons:

  1. Adopting a de minimis analysis would require employment of “mental, musicological, and technological gymnastics.”
  2. Artists and recording companies have previously sought licenses “as a matter of course.”
  3. The record industry can work out its own guidelines.
  4. The new rule “should not play any role in the assessment of concepts such as ‘willful’ or ‘intentional’” in cases currently before the courts or in those already decided.
  5. “[T]here is no Rosetta stone” in interpreting the statute. As previously stated, a literal approach was taken to reading the statue. The Court, therefore, did not refer to legislative history because digital sampling was not done in 1971. Accordingly, if the record industry wanted a change, they can ask Congress for “a clarification or change in the law.”[3]

The Court, therefore, held that no de minimis inquiry was needed—where there was no authorization, infringement was established.

The Ninth Circuit

The Plaintiff in VMG Salsoul, LLC v. Ciccone alleged that a horn hit was sampled from his song “Ooh I Love It (Love Break)” (“Love Break”) in “Vogue” by Madonna. Interestingly, the person who recorded “Love Break” also recorded “Vogue” with Madonna. The horn hits are between 3:11 and 4:38, and from 7:01 to the end, at 7:46 in “Love Break” and at 1:14, 1:20, 3:59, 4:24, 4:40, and 4:57 in “Vogue.”

See if you can spot them:

https://www.youtube.com/watch?v=a_YmUoQKJRw

https://www.youtube.com/watch?v=GuJQSAiODqI

Here, the Ninth Circuit took a different approach.

First, the Court looked at the statute and concluded that Congress intended to limit, as opposed to expand, the rights of copyright holders.[4] In addition to its differing approach to statutory interpretation, the Ninth Circuit’s decision also was based on the fact that a de minimis exception has been applied “across centuries of jurisprudence.”[5] Thus, it was applicable in this dispute, directly in conflict with the Sixth Circuit’s holding.

Next, the Court looked to legislative history:

“…infringement takes place whenever all or any substantial portion of the actual sounds that go to make up a copyrighted sound recording are reproduced in phonorecords by … any … method, or by reproducing them in the soundtrack or audio portion of a motion picture or other audiovisual work. Mere imitation of a recorded performance would not constitute a copyright infringement even where one performer deliberately sets out to simulate another’s performance as exactly as possible.”[6]

Finally, the Court concluded that the legally protected interest is “the potential financial return from his compositions which derive from the lay public’s approbation of his efforts.”[7] “If the public does not recognize the appropriation, then the copier has not benefitted from the original artist’s expressive content. Accordingly, there is no infringement.”[8]

Therefore, in the Ninth Circuit, the “de minimis” exception does apply to copyrighted sound recordings. Put simply, if a lay person can’t recognize the similarity, there is not infringement.

Looking Forward

Depending on which jurisdiction you’re in, sampling a specific sound in a song may get you in trouble for copyright infringement. So, which approach is better: an authorization requirement for any sampling of a sound or just sounds the lay public can recognize?

[1] VMG Salsoul, LLC v. Ciccone, 824 F.3d 871, 875 (9th Cir. 2016).

[2] Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005).

[3] Bridgeport Music, 410 F.3d at 805.

[4] VMG Salsoul, 824 F.3d at 883.

[5] Id.

[6] H.R. Rep. No. 94-1476, at 106 (1976), reprinted in 1976 U.S.C.C.A.N. at 5721 (emphasis added).

[7] Arnstein v. Porter, 154 F.2d 464, 473 (2d Cir. 1946).

[8] VMG Salsoul, 824 F.3d at 881.

Nominative Use: A Three-Way Split

Today, we’ll tackle a trademark problem ripe for picking by SCOTUS—nominative use.

 What Are Trademarks?

A trademark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others. Unlike patents which require a lengthy registration process to have any legal redress, trademarks can gain some initial legal protection under common law via mere use.

For those individuals wanting to give more protective #oomph to the holder of a mark, one can register their mark with the US Patent and Trademark Office, granting federal trademark protection under the Lanham Act, 15 U.S.C. §1051 et.seq.

While the Lanham Act covers a wide range of topics ranging from the gamut of procedures for obtaining federal trademark recognition, the various types of marks that the law recognizes, and specific international trademark protections, our focus turns on the causes of action for infringement granted under the Lanham Act, 15 U.S.C. §1114. Specifically, an individual is liable in a civil action commenced by a trademark registrant whenever any person without the registrant’s consent:

use[s] in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive…

The importance of such a liability rule is plain—absent protection, a third-rate shoe manufacturer could use the Nike “swoosh” at their leisure, marketing their shoes to consumers who might believe that the pair of kicks they are purchasing are name-brand, not knock-offs. While seemingly straightforward, courts take differing stances on how infringement actions are analyzed and ruled on.

A (trade)Marked Split

The Ninth Circuit established nominative use in 1992, in New Kids on the Block v. News America Pub. Inc. New Kids on the Block v. News America Pub. Inc.

In a move to prevent inordinate control of their fans, New Kids on the Block brought suit against News America for use of the term “New Kids” as part of their phone survey hotline (incidentally focused on the members of the band). The Ninth Circuit reasoned that a strict construction of trademark exclusivity would lead to a practical impossibility in describing well-known products by generic names, bringing up examples of using the phrase “the professional basketball team from Chicago” in lieu of the Chicago Bulls. To facilitate fair use of trademarks, the Ninth Circuit posited the doctrine of “nominative use”:

a non-trademark use of a mark . . . [occurs when a]…trademark does not attempt to capitalize on consumer confusion or to appropriate the cachet of one product for a different one. Such nominative use of a mark—where the only word reasonably available to describe a particular thing is pressed into service—lies outside the strictures of trademark law [and cannot be said to promote unfair competition]…a commercial user is entitled [nominative fair use] provided he meets the following . . . (1) the product or service in question must be one not readily identifiable without use of the trademark; (2) only so much of the mark or marks may be used as is reasonably necessary to identify the product or service; and (3) the user must do nothing that would, in conjunction with the mark, suggest sponsorship or endorsement by the trademark holder.

The Third Circuit, in 2005, offered a slightly different formulation:

(1) that the use of plaintiff’s mark is necessary to describe both the plaintiff’s product or service and the defendant’s product or service; (2) that the defendant uses only so much of the plaintiff’s mark as is necessary to describe plaintiff’s product; and (3) that the defendant’s conduct or language reflect the true and accurate relationship between plaintiff and defendant’s products or services.

Keeping these two distinct approaches to trademark infringement analysis in mind, the Second Circuit recently complicated the matter in International Information Systems Sec. Certification Consortium, Inc. v. Security University, LLC (2016).

Information Systems brought suit against Security University for allegedly using a particular certification trademark used by Information Systems to denote passing a certain stage of computer security exams, and on appeal the Second Circuit held that the infringement was erroneously evaluated at trial based on the Ninth Circuit’s test for nominative use and not on the Polaroid factors.

The court noted that Information Systems’s mark was part of a special class of marks that are intended to be used by individuals other than the registrant, explaining that:

[the mark in question] is meant to certify quality and characteristics . . .[despite] the differences between certification marks and other types of marks, the Lanham Act provides that certification marks are generally entitled to the same protection from infringement as are trademarks . . . except when used so as to represent falsely that the owner or a user thereof makes or sells the goods or performs the services on or in connection with which such mark is used . . .

In using only the nominative use test, the trial court apparently failed to take into account other ways that trademarks can be infringed under the Polaroid test even if the test factors do not all apply.

In highlighting the weakness of source confusion in the Ninth Circuit test and the inadequacies found in similar nominative use tests in the Third Circuit, the Second Circuit ultimately overturned its own precedent by adopting a much more expansive test for trademark infringement, stating that:

[while there is] no reason to replace the Polaroid test . . . [we recognize that the] the Polaroid factors are a bad fit here and that we have repeatedly emphasized that the Polaroid factors are non-exclusive . . . [and we] “have recognized that a defendant may lawfully use a plaintiff’s trademark where doing so is necessary to describe the plaintiff’s product and does not imply a false affiliation or endorsement by the plaintiff of the defendant . . . [As a result,] district courts are to consider the Ninth Circuit and Third Circuit’s nominative fair use factors, in addition to the Polaroid factors…

Looking Forward

Based on this ruling by the Second Circuit, there are three (somewhat different, somewhat the same) approaches to nominative use. For litigants in the Second Circuit, the mélange approach could potentially require 15 different factors to be considered. Unfortunately, with the recent denial of certiorari, business owners and trademark attorneys across the country must continue to deal with the confusion.

For further reading, see what firms Morgan Lewis & Bockius and Arent Fox have to say on the matter.

Pandora’s Inbox: email and “electronic storage” under the Stored Communications Act

When Congress passed the Stored Communications Act (“SCA”) in 1986, email systems were markedly different. Email systems from the 1970s closely mirrored what we know as instant messaging; both the sender and recipient had to be online to send and receive messages. It was only in the early ‘90s when the current ‘store and forward’ technique became utilized.

Moreover, web-based email (i.e., Gmail and Hotmail) didn’t exist. Instead, email was handled on an intranet, usually within a business, and users would download email messages from a server. The server would typically not backup the message (disk storage space was a luxury back then), and the only copy existed on the user’s computer. Today, we receive emails on our computers, phones, and watches (often simultaneously), and rely on that server to keep those emails in perpetuity.

“Electronic Storage”

The SCA prohibits unauthorized access to email, among other communications, but only if the communication is defined as being in “electronic storage.” See 18 U.S.C. § 2701. The SCA defined “electronic storage” as follows:

(17) “electronic storage” means—

(A) any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and 

(B) any storage of such communication by an electronic communication service for purposes of backup protection of such communication;

18 U.S.C. § 2510(17).

The act also specifies the legal process the government must use to compel disclosure of messages in “electronic storage.” See 18 U.S.C. § 2703. When it was passed, Congress presumed that any emails left on an email server longer than 180 days were “abandoned,” and thus could be obtained by law enforcement without requiring a warrant (or giving notice to the user).

Courts have agreed that unopened emails residing on a server are protected by SCA; the fiction is that an unopened email is considered to be in “temporary, intermediate storage” pending delivery. See Cruz Lopez v. Pena (N.D. Tex. Mar. 5, 2013) (“§ 2510(17) has been clearly established to protect unopened emails.”); Lazette v. Kulmatycki, (N.D. Ohio 2013) (“[P]laintiff cannot prevail to the extent that she seeks to recover based on a claim that [defendant] violated the SCA when he accessed e-mails which she had opened but not deleted.”).

Emails Stored Online & Downloaded to a Personal Device 

In Theofel v. Farey-Jones, the Ninth Circuit held that emails received, read, and left on a server fit within the Act’s definition of being “for purposes of backup protection”:

 [a]n obvious purpose for storing a message on an [internet service provider’s (“ISP”)] server after delivery [from the server to the user] is to provide a second copy of the message in the event that the user needs to download it again–if, for example, the message is accidentally erased from the user’s own computer.

At first glance, the definition seems quite broad, allowing for any email to be protected. Parsing through the opinion (which offers little in information on email configuration) it seems clear that Chief Justice Kozinski relied upon the assumption that the users downloaded the emails to their personal computers, noting that if “remote computing service might be the only place a user stores his messages; in that case, the messages are not stored for backup purposes.” Id. at 1077. Other courts have aligned with the similar view concerning email both downloaded and on a server. See, e.g., Shefts v. Petrakis, (C.D. Ill. Nov. 29, 2011) (finding email copies were protected by SCA when plaintiff downloaded them to Outlook); Cornerstone Consultants Inc. v. Prod. Input Solutions LLC, (N.D. Iowa 2011) (same).

Noted scholar Orin Kerr believes the Ninth Circuit incorrectly interpreted the provision in the context of the user, and argues that “the ‘backup’ language is about backups created by the ISP for the ISP’s purposes.” Kerr also criticized Kozinski’s rationale in an earlier paper, noting that “the apparent test is whether the user or employees of the service provider have reason to believe that they may need to access an additional copy of the file in the future.”

Users v. Servers

In Jennings v. Jennings, the Supreme Court of South Carolina granted cert on a case involving a wife who figured out her husband’s Yahoo! email password, and accessed his account (she was looking for evidence of an affair). When the husband sued under the SCA, the court decided to take a crack at interpreting the statute. Unsurprisingly, the court returned with a 2-2-1 plurality decision:

• Justice Hearn, joined by Justice Kittredge— based on the meaning of the word “backup” according to a Merriam-Webster Dictionary, a substitute copy has to exist for the email to be a “backup.” Since the only copy of the email was read and stored on Yahoo!’s servers, it follows that the emails are not protected under the SCA.

• Chief Justice Toal, joined by Justice Beatty—the justices believed section (A) and (B) were conjunctive. Unread email on Yahoo!’s server is in “transmission” and “backup” until the user reads them, thus protected by the SCA as “electronic storage.” However, once an email is read, it has reached its destination, and is no longer stored under the definition of the SCA.

• Justice Pleicones—while mostly agreeing with Chief Justice Toal, Pleicones believed that the statute was disjunctive, but still failed to find the email satisfied either provision.

Rejecting the reasoning in Theofel, these three decisions all took the approach that the SCA protects emails from the perspective of Yahoo!, not the user. They also assumed the husband never downloaded his Yahoo! mail onto a computer or other device.

Received v. Sent Emails

The Eighth Circuit provided a proper circuit split in Anzaldua v. Northeast Ambulance & Fire Protection District. Here, A jilted ex-girlfriend logged on to the plaintiff’s Gmail account and forwarded two emails to the plaintiff’s superior. The plaintiff was later fired due to “inflammatory” remarks found in his emails. The issue on appeal was whether the two emails (one was in the sent folder, the other in the drafts) were considered protected under SCA. The court held neither email were protected.

The argument centered on whether the user sent or received the email. One of emails forwarded was sent earlier to another person. The second email was still in the draft folder. According to the Eighth Circuit, since neither email was received, neither are within the ambit of the SPA. In rejecting Theofel, it noted “[i]f Theofel has any application here, it would be to protect a copy of the email stored with Holland’s email service, not Anzaldua’s.”

Concerning the sent email, the Eighth Circuit argued that the plaintiff had no reason to access a backup copy of the email because the message had been successfully delivered, “[w]e hold that once Anzaldua successfully sent the email to Holland, as he alleged he did, the copy Gmail retained on its server as a sent message did not perform a backup function.”

As for the email in the draft folder, “because the email had not been sent, its storage on the Gmail server was not ‘temporary, intermediate,’ and ‘incidental to the electronic transmission thereof.’”

Again, the court made no mention if the plaintiff had downloaded those emails onto a separate device. Rather, it mentions n passing that “web-based email users may still download emails to their computers through email client programs, which complicates the picture.”

Looking Forward

Epic.org has proved this helpful table as to what type of law enforcement access is required to read your email:

EPIC Email Guide

You have to wonder how we got here. It would seem judicial opinion goes backwards, creating splits along the way, while technology continues to forge on. It is likely necessary to jettison this act and replace it with something that will properly suit modern technology.

In a somewhat fitting analogy, judicial review and legislative amendments of the SCA is akin to what is known in software development as the “Code and Fix” methodology. Here, a developer writes code and then quickly releases the application without testing it. When a user reports a bug, the developer writes some code to patch it up, then releases it again—this cycle continues, the software becomes bloated, and every subsequent bug takes longer to fix. Suffice it say, the methodology is heavily frowned upon. Sometimes, it’s simply prudent to scrap something and start fresh.

 

Deep in the Heart of Venue: A Patent Procedure Wrinkle

Before I begin, I should note that it is difficult to pinpoint circuit splits in the intellectual property context, particularly in patent law. Because of the highly specialized subject-matter jurisdiction of the United States Court of Appeals for the Federal Circuit (CAFC)—a court empowered to deal with patent matters from both the USPTO & the Federal District courts under 35 USC §141(a) and 28 USC §1295—the rulings released by CAFC are typically binding law, sans Congressional action in changing patent laws. South Corp. v. United States, (Fed. Cir. 1982). CAFC decisions are also not usually granted discretionary review by SCOTUS. Because of this specific scope of CAFC and its weight of authority in patent adjudication, there are often no real circuit splits that arise in patent law that are subject to SCOTUS review like in other areas of US law.

Nevertheless, internal splits do arise, and intellectual property is rife with authorities taking competing positions—particularly when IP law intertwines with other areas of law. This post highlights such a split. Let’s dive in.

What’s “Patent Venue”?

Within the volumes of Title 28 of the United States Code are the (in)famous provisions detailing how one invokes the jurisdiction of the US Federal Court system. While the fountainheads of federal question and diversity of citizenship under §1331 & §1332(a) are certainly important (and draw the ire of your 1L author), our super-juicy bit today centers on 28 USC §1400, which deals with Patent Venues.

Under §1400(b):

any civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business.

SCOTUS weighed in on this provision in Fourco Glass Co. v. Transmirra Products Corp. (1957), and held that §1400 is one of several special statutes not subject to the general venue provisions codified in §1391(c). Specifically,

The question is not whether §1391(c) is clear and general . . . [but] whether it supplements §1400 . . . . We think it is clear that §1391(c) is a general corporation venue statute . . . [and] the law is settled that ‘however inclusive may be the general language of a statute, it will not be held to apply to a matter specifically dealt with in another part of the same enactment’ . . . . [As such], §1400(b) is the sole and exclusive provision controlling venue in patent infringement actions, and it is not to be supplemented by the provisions of 28 USC §1391(c).

The rule from Fourco is a relatively unambiguous rule for the world of patent litigation—that as a matter of procedure, the only statute that controls patent venue considerations is codified in §1400(b).

 Solo Split: The Federal Circuit, VE Holding, & TC Heartland

Despite the clarity of the venue provisions for patent litigation in §1400(b), CAFC threw a wrench into the mix with VE Holding Corp. v. Johnson Gas Appliance Co. (1990). The court deviated from SCOTUS’s bright-line test, applying some handy-dandy tools of statutory interpretation to hold that §1400(b) actually IS supplemented by §1391(c). Using both the textual context given by the 1988 revisions to §1391(c), and the clear lack of any expressed Congressional intent to maintain the exclusivity of §1400(b), the court held that §1400(b) is in fact modified by §1391(c). The court reasoned that:

[§1391(c)] as it was in Fourco is [gone, and] Congress could have easily added ‘except for §1400(b)’ . . . . The language of the statute is clear and its meaning is unambiguous . . . . The general rule that a specific statute is not controlled or nullified by a general statute regardless of priority of enactment, absent a clear intention or otherwise, does not govern the present situation. [§1391(c)] expressly reads itself into §1400(b)…[ §1391(c)] only operates to define a term in §1400(b) [nor does it conflict with §1400(b)]. Furthermore, even were the rule applicable . . . the language of the statute would reveal a ‘clear intention’ that §1391(c) is to supplement §1400(b).

In Kraft Food Group Brands, LLC v. TC Heartland, LLC (2015), the District Court of Delaware affirmed the holding in VE Holding Corp. This decision was ultimately affirmed by the CAFC in In re TC Heartland, LLC (2016). In both cases, TC Heartland argued that as part of the 2011 revisions to the US Code, the language in §1391(c) that CAFC relied on in VE Holding was changed, thus no longer modifying §1400(b). CAFC dismissed this in short order on TC Heartland’s appeal from Delaware, claiming that the changes made as part of the 2011 revisions were minor, and merely was a “broadening of the applicability of corporate residence, not a narrowing.” Further, the court assuming arguendo that Congress had intended to capture the meaning of the venue provisions in §1400(b), Fourco was not the precedent that Congress would have captured.

Looking Forward

What’s the Future for Patent Venues?

Based on this ruling by the CAFC, TC Heartland has begun the process of SCOTUS review, relying on the argument that CAFC has unilaterally overturned Supreme Court precedent in neglecting the holding of Fourco. As the amici briefs churn into the SCOTUS docket for this case, it raises the question of just where the Supreme Court will fall on this.

Given other SCOTUS decisions like Alice Corp. v. CLS Bank Int’l. (2014) and the affirmation of vague understandings of technology patents by both CAFC and SCOTUS, it is more than a little hazy as to where the Justices will stand on this question of patent venue provisions.

If the court chooses to side with CAFC’s cracking of the precedent in Fourco, it might be the case that more broad venue provisions would create a windfall for patent litigants who would gain the freedom to sue patent infringers anywhere that §1391(c) can be applied. However, if SCOTUS flexes its judicial muscle and overrules CAFC in favor of its 1957 holding in Fourco, we might just get another instance of an appeals court with a bit of egg in its face. Patent cases are a HUGE source of business for firms and agencies across the world, and this case has the potential to change the face of how patent litigation will be undertaken.

For further reading, see what firms Baker Botts and White & Case have to say on the matter.