Intellectual Property Law: Looking Forward to 2023

With the continuing advancements of cutting-edge technologies — such as genome editing (CRISPR) and Non-Fungible Tokens (NFTs) — U.S. courts will have a full docket of challenging IP cases throughout 2023. Below are some of the most significant issues we are watching:

Keep an Eye on the US Supreme Court for New IP Law in 2023
Andy Warhol Found. for Visual Arts, Inc. v. Goldsmith, 11 F.4th 26 (2d. Cir. 2021), cert. granted, 142 S. Ct. 1412 (Mar. 28, 2022) (No. 21-869). The Supreme Court heard arguments on October 12, 2022 whether a work of art which “recognizably deriv[es] from” its source material but conveys a different meaning or message is sufficiently “transformative” to render the accused work a fair use, or whether further justification must be shown to qualify as a fair use.

Amgen Inc. v. Sanofi, Aventisub LLC, 987 F.3d 1080 (Fed. Cir. 2021), cert. granted in part sub nom. Amgen Inc. v. Sanofi, 143 S. Ct. 399 (Nov. 4, 2022) (No. 21-757). In Amgen, the Supreme Court will address the issue of whether a patent specification must disclose “the full scope of claimed embodiments” without undue experimentation.

Hetronic Int'l, Inc. v. Hetronic Ger. GmbH, 10 F.4th 1016 (10th Cir. 2021), cert. granted sub nom. Abitron Austria GmbH v. Hetronic Int'l, Inc., 143 S. Ct. 398 (Nov. 4, 2022) (No. 21-1043). The question presented here is whether the Tenth Circuit erred in applying the Lanham Act extraterritorially to petitioners’ foreign sales, including purely foreign sales that never reached the United States or confused consumers in the United States.

VIP Prods. LLC v. Jack Daniel’s Props., Inc., 2022 WL 1654040 (9th Cir. Mar. 18, 2022), cert. granted, 2022 WL 17087471 (U.S. Nov. 21, 2022) (No. 22-148). The Supreme Court granted certiorari on two questions: (1) Whether humorous use of another’s trademark as one’s own on a commercial product is subject to the Lanham Act’s traditional likelihood-of-confusion analysis, or instead receives heightened First Amendment protection from trademark-infringement claims? and (2) Whether humorous use of another’s mark as one’s own on a commercial product is “noncommercial” under 15 U.S.C. § 1125(c)(3)(C), thus barring as a matter of law a claim of dilution by tarnishment under the Trademark Dilution Revision Act?

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