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Cheerleaders and Laches

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Monday the U.S. Supreme Court agreed to hear cases on patent laches, SCA Hygiene Products Aktiebolag et al. v. First Quality Baby Products, LLC et al., and copyright protection for clothing, Star Athletica, LLC v. Varsity Brands, Inc.

In SCA Hygiene, the Supreme Court will review the Federal Circuit’s decision that laches remains a viable defense in patent cases, despite the Supreme Court’s 2014 ruling in Petrella v. Metro-Goldwyn-Mayer, Inc. In Petrella, the Supreme Court held that laches cannot bar copyright claims that accrued within the three years from commencement of suit, except in extraordinary cases for equitable relief.  In September 2015, a divided en banc Federal Circuit held that laches remains a viable defense to patent damages, under a 1992 Federal Circuit decision, A.C. Aukerman Co. v. R.L. Chaides Constr. Co. The Federal Circuit reasoned that Congress had codified laches as a defense in the Patent Act, 35 U.S.C. § 282, which distinguished Petrella.

In Star Athletica, the Supreme Court will decide whether apparel can be protected by copyright.  The Sixth Circuit held that Varsity Brands, Inc. owned a valid copyright in the stripes, chevrons, and other elements that appear on the company’s cheerleading uniforms.  The Sixth Circuit reasoned that the designs could be “identified separately, and are capable of existing independently of, the utilitarian aspects” of the clothing, so as to not be considered a useful item that cannot be protected by copyright.  The majority and dissent both recognized, however, that “conceptual separability” is an unclear area of the law, and that numerous tests and approaches exist, prompting Supreme Court intervention.