In 2019 the Supreme Court and the Court of Appeals for the Federal Circuit grappled with IP cases turning on constitutional law, sovereign immunity and administrative law. In AVX Corporation v. Presidio Components Inc., the Federal Circuit dismissed AVX’s appeal on the grounds that AVX failed to prove standing as required by the Constitution. Among its findings, the statutory estoppel provision found in 35 U.S.C. § 315(e) does not provide sufficient “injury” for Article III standing.
In Regents of the University of Minnesota v. LSI Corporation, the University appealed the PTO’s decision to maintain IPR petitions against patents owned by the University, alleging that the petitions were improper because states enjoy sovereign immunity from IPR proceedings. The Federal Circuit disagreed, holding that state sovereign immunity did not apply to IPR proceedings. In 2020, the Supreme Court will issue an opinion in Allen v. Cooper, a copyright infringement case relating to sovereign immunity in federal court.
In Iancu v. Brunetti, the PTO rejected a trademark application for the mark FUCT under the immoral or scandalous bar. The applicant appealed. The Federal Circuit held that the bar was unconstitutional because it violated the applicant’s right to free speech. The Supreme Court affirmed. In 2020 the Trademark Official Gazette (a weekly publication about applications and registrations) published by the PTO will likely raise eyebrows as applicants begin to seek registration for marks that would have previously been barred as immoral or scandalous.