Top Tens in 2010: Patent, Trademark, Copyright and Trade Secret Cases

This piece discusses notable intellectual property decisions in 2010 in the United States. Viewed across doctrinal lines, some interesting threads emerge. The scope of protection was at issue in each area, such as whether human genes and business methods are patentable, whether a product idea may be a trade secret, and where the constitutional limits on copyright legislation lie. Secondary liability remains widely litigated, as rights holders seek both deep pocket defendants and a means to cut off individual infringers. The courts applied slightly different standards as to the state of mind required for secondary liability. Many of the cases involved disputes between hiring and hired parties, over the ownership of intellectual property rights:professors and universities contesting rights to federally funded inventions; an artist seeking to prevent a museum from showing an unfinished commissioned work; a party that commissioned a sculpture, but without obtaining the copyright, relying on fair use to exploit derivative works; entrepreneurs disputing how to apply the work-made-for-hire doctrine in the informal context of a start-up business; and a company hiring a competitor’s employees to reverse engineer its trade secrets. A number of cases concerned the relationship between intangible rights and physical property: liability for false patent marking, attempts to limit a biotech patent to the sample submitted to show possession of the invention, seeking trademark protection for the shape of a round beach towel, and sales of second hand software on eBay