Top Tens in 2011: Patent, Trademark, Copyright and Trade Secret Cases

This paper discusses notable intellectual property law cases in the United States in 2011. Patent cases addressed such issues as the scope of patent subject matter (the patentability of human genes and methods for testing for genetic links to cancer), the standards for challenges to the validity of patents (such as where technology that was not considered by the patent office is put in evidence), and the breadth of patent protection (especially with respect to the scope of protection for software patents). Other cases tested the borders of trademark protection – distinctiveness, functionality, and the interplay between trademark law and other areas of the law, such as the First Amendment, products liability, and internet domain name ownership. In copyright, significant decisions addressed such issues as the proper procedures to settle a dispute (the Google Books case) affecting almost every author and reader, the scope of fair use, the assignment of rights to enforce alleged online infringement, the copyright holder’s power to control copies it has distributed, the minimal requirements for copyright protection, and liability of websites for users’ infringement. Trade secret cases reflected its interplay with patent law. An inventor may patent the invention (which requires publication of the information) or keep it a trade secret (which requires preventing publication). That boundary, cases show, is porous. The cases also reflect the increasing international flow of goods and information, as well as more attempts to protect “proprietary” information under the computer fraud statute