The Supreme Court has agreed to hear two cases with substantial repercussions for certain areas of copyright and patent practice. Star Athletica, LLC v. Varsity Brands, Inc. may have a significant impact on how companies protect products with ornamental designs that are integrated with useful articles. In the patent arena, SCA Hygiene Products v. First Quality Baby Products, LLC promises to influence patent litigation practices as it concerns whether prejudicial delay (“laches”) may be a defense to legal remedies in patent cases brought within the statute of limitations period. Amicus briefs on these cases will be due starting in July.

Star Athletica, LLC v. Varsity Brands, Inc.

This copyright case concerns whether graphic designs on cheerleading uniforms are “conceptually separable” from the uniforms as useful clothing items so as to be copyrightable. The uniforms at issue involve two dimensional artwork applied to the uniforms where copyright protection is claimed in the placement of the chevrons, zig zags and color blocking. The plaintiff did not claim copyright in the overall design and shape of the uniform itself, but rather alleges that the graphic designs used on Star Athletica’s cheerleader uniforms were too similar to the graphic designs covered by Varsity Brands’ copyright registrations.

The Federal District Court of Western District of Tennessee ruled for the defendant, holding that the graphic designs displayed on the uniforms were uncopyrightable because they are not physically or conceptually separable from the design of the cheerleading uniforms themselves. However, the Federal Court of Appeals for the Sixth Circuit reversed (in a two to one opinion), finding that Varsity Brands was entitled to copyright protection for the graphic designs as placed on the uniforms. The Appellate Court compared the two dimensional graphic designs covered by Varsity’s copyright registrations to fabric designs (which are traditionally copyrightable) rather than to clothing designs (which are not typically copyrightable).

While it is well settled that functional objects are not subject to copyright protection, copyright law nonetheless protects ornamental designs that are physically or conceptually separable from an underlying functional object. The Supreme Court’s decision may set a national standard for conceptual separability, i.e., how to determine whether ornamental features of functional items are entitled to copyright protection. The test for conceptual separability varies across the federal circuits, and sometimes even within the same circuit, thus a definitive standard remains elusive to date.

Amicus briefs in support of each party are due one week after the respective party files its merits brief. Currently, petitioner Star Athletica has until July 15 to file its brief and respondent Varsity Brands has until September 14 to file its brief.

SCA Hygiene Products Aktiebolag v. First Quality Baby Products, LLC

This patent case concerns whether defendants may use prejudicial delay (“laches”) as a defense to legal patent remedies even where plaintiffs initiate the cases within the statute of limitations period. The Supreme Court has taken up this case in the wake of a copyright case from 2014 (Petrella v. Metro-Goldwyn-Mayer, Inc.), where the Supreme Court ruled that defendants could not claim a laches defense when a case was brought within the statute of limitations period.

In the courts below, the plaintiff claimed infringement of its patent concerning adult incontinence-related products. The Federal District Court for the Western District of Kentucky ruled that the defense of laches had been established, notwithstanding that the lawsuit was brought within the six-year statutory limitations period of the Patent Act. The Court of Appeals for the Federal Circuit affirmed the decision in a six to five en banc panel. The Federal Circuit reasoned that because the Patent Act includes both a defense of laches and a statutory limitations period, the defense of laches can arise even before the statute of limitations runs. The Federal Circuit Court noted that the Supreme Court’s copyright decision Petrella did not overrule the contrary case law arising in the patent context.

Amicus briefs in support of each party are due one week after the respective party files its merits brief. Currently, petitioner SCA Hygiene Products has until July 15 to file its brief and respondent First Quality Baby Products has until September 12 to file its brief.