Recent Supreme Court Activity

Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. Several merits and amicus briefs were filed in two cases pending at the Court. In addition, while the Court did not grant or deny any cert petitions, one new cert petition was filed as well as one reply in support of a petition.

Activity in Merits Cases

Several briefs were filed in Thryv, Inc. v. Click-To-Call Technologies, LP:

• Thryv, Inc. filed its opening merits brief arguing that “Congress intended to preclude judicial review” of the relevant determination by the U.S. Patent and Trademark Office, and that “[t]he Federal Circuit’s contrary decision is inconsistent with the plain text of the statute [as well as] this Court’s precedent and the overall purpose” of the America Invents Act.
• The Solicitor General filed a brief on behalf of the federal government supporting Thryv’s position, stating “[t]he USPTO’s determination whether a petition for inter partes review is time-barred under 35 U.S.C. 315(b) is not judicially reviewable.”
• Amicus briefs were filed on behalf of several organizations opposing review of time-bar determinations:
  • Atlanta Gas Light Company
  • AARP and AARP Foundation
  • ON Semiconductor Corporation, Semiconductor Components Industries, LLC, Fairchild Semiconductor International, Inc.
  • Intel Corporation
  • Superior Communications, Inc.
• Amicus briefs were also filed on behalf of two organizations supporting review of time-bar determinations:
  • Federal Circuit Bar Association
  • American Intellectual Property Law Association
• One amicus brief, on behalf of the PTAB Bar Association, came out “neutral on the outcome of this case,” but candidly highlighted that “[p]atent owners generally favor reviewability while patent challengers generally do not.”

Several amicus briefs also were filed in Maine Community Health Options v. United States, all in favor of the petitioner and reversal of the Federal Circuit’s holding that appropriations riders suspended certain payment obligations otherwise required by the Affordable Care Act:

• America’s Health Insurance Plans
• Chamber of Commerce of the United States of America
• Highmark Inc., et al.
• Blue Cross Blue Shield Association
• National Association of Insurance Commissioners
• 24 States and the District of Columbia
• Association for Community Affiliated Plans
• Wisconsin Physicians Service Insurance Corporation; WPS Health Plan, Inc.
• Economists and Professors M. Kate Bundorf, et al.

New Petitions

In Technology Properties Limited LLC v. Huawei Technologies Co. the petitioner asked the Court to review “[w]hether the United States Court of Appeals for the Federal Circuit’s development and application of the doctrine of ‘prosecution history disclaimer’ is consistent with fundamental principles of separation of powers, the Patent Act, and long-established Supreme Court precedent.”

New Responses

Responses to cert petitions were filed in two cases:

In Straight Path IP Group, LLC v. Apple Inc., Apple filed a waiver of its right to respond to the petition. Cisco Systems also submitted a waiver of its right to respond.

New Replies

In Xitronix Corp v. KLA-Tencor Corp., the petitioner filed its reply brief at the petition stage arguing that “[t]he Federal and Fifth Circuit’s opinions are written broadly enough that each circuit will not require a large category of appeals to be transferred to the other circuit . . . [L]itigants will have no idea where to appeal—leading to time-consuming and wasteful litigation over where to litigate. The Court should resolve that confusion and set a clear jurisdictional rule.”

Grants

The Supreme Court did not grant any cert petitions.

Denials

The Court likewise did not deny any cert petitions.