In the past two months, the Supreme Court handed down a significant patent-law decision establishing the standard of appellate review for claim-construction decisions, and resolved a circuit split by holding that a jury, not the court, should decide whether modifications to a trademark change the commercial impression of the mark. We also address appellate decisions about the evolving doctrine of patent exhaustion, and about copyright damages in the lawsuit between Korean War Memorial sculptor Frank Gaylord and the U.S. Postal Service.

Patent: Claim Construction

Claim construction—the definition of terms in a patent claim—can be the most important event in a patent case, because the scope of the invention guides infringement, invalidity and damages issues. Such an important substantive issue necessarily raises important procedural questions: Who decides claim construction, and how is that decision reviewed on appeal?

The Supreme Court's landmark Markman decision held that claim construction is the province of the court, not a jury. Markman v. Westview Instruments, 517 U.S. 370, 388 (1996). And in Teva Pharmaceuticals v. Sandoz, decided Jan. 20, 2015, the Supreme Court answered the appellate-review question, reversing 20 years of Federal Circuit precedent and holding that while claim construction itself is reviewed de novo, a district court's subsidiary fact-findings based on extrinsic evidence (anything other than the patent's claims, specification, and prosecution history) are reviewed for clear error under Fed. R. Civ. P. 52(a)(6).

The U.S. Court of Appeals for the Federal Circuit had established de novo review for claim construction in Cybor Corp. v. FAS Techs., 138 F.3d 1448, 1454-55 (Fed. Cir. 1998) (en banc). That standard, coupled with the lack of interlocutory review, meant that many patent cases went through trial only to have bedrock claim construction issues reversed and the case sent back to the trial court to start over. The reversal rate was estimated to be as high as 30-50 percent. Repeated calls to reassess the de novo review standard—from parties, commentators, and members of the court itself—led to the Federal Circuit's en banc decision in Lighting Ballast Control v. Philips Elecs. N. Am. Corp., 744 F.3d 1272, 1276-95 (Fed. Cir. 2014) to reassess Cybor. To the surprise of many, the Federal Circuit reaffirmed de novo review, on stare decisis grounds and because de novo review by a nationwide court would promote uniformity in claim construction.