Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit.
Activity in Granted Cases
In Maine Community Health Options v. United States, the United States filed its response brief arguing that the Federal Circuit “correctly concluded that petitioners cannot obtain damages in these suits under the Tucker Act for amounts of risk-corridors subsidies that Congress declined to appropriate.” The government also argues that the Federal Circuit “correctly rejected Moda’s and Blue Cross’s alternative theory that Section 1342 or HHS’s actions gave rise to an implied-in-fact contract that entitled insurers to ‘payments out’ irrespective of appropriations.”
In Land of Lincoln Mutual Health Insurance Company v. United States, the United States filed the same brief, and in Moda Health Plan Inc. v. United States the United States filed the same brief. The Supreme Court previously consolidated these three cases for briefing and oral argument.
New Amicus Briefs
In Thryv, Inc. v. Click-to-Call Technologies, LP, the New York Intellectual Property Law Association filed an amicus brief in support of the respondent, arguing that the Supreme Court “should affirm the Federal Circuit’s holding that in an appeal from a final written decision of the Board in an IPR, the Federal Circuit may review whether the petition for IPR was time-barred under 35 U.S.C. § 315(b).”
Activity in Petition Cases
Grants and Denials
The Court denied petitions in the following three cases as a result of its conference on October 18:
Two new petitions were filed, one in a patent case and another in a pro se case.
In ChargePoint, Inc. v. SemaConnect, Inc., the petitioner asked the Court to review the following to questions:
- “Whether a patent claim to a new and useful improvement to a machine or process may be patent eligible even when it ‘involves’ or incorporates an abstract idea.”
- “Whether the Court should reevaluate the atextual exception to Section 101.”
In Maksisimuk v. Connor Sport Court International, LLC, the following four questions were presented by the pro se petitioner:
- “Did the CAFC, District Court, 10th Cir., TTAB Orders and Judgments and referenced Supreme Court rulings—that required corporations to be represented by legal counsel in court rooms—violate the Equal Protection Clause and Due Process of Law and; should these Supreme Court rulings be amended or over-turned so to conform with the Equal Protection Clause? If so, should the CAFC, District Court, 10th Circuit, TTAB decisions be overturned?”;
- “Did the Dist. Court, 10th Cir. and CAFC exclude cumulative evidence, ignore Supreme Court rulings, U.S. Codes and Fed. R. Civ. P. in a prejudicial, bias and erroneously manner so to meet abuse of discretion standards? If so, should a retrial be granted in the proper venue?”;
- “Did the Dist. Court violate the 5th & 14th Amendments when it ruled that the Petitioner ‘is enjoined from using’ the domain name?”; and
- “Owning to the errors of law committed by the CAFC, Dist. Court, 10th Cir. and TTAB and the preponderance of evidence and referenced SC rulings, should the trademark ‘sport court’ be cancelled and remove from the trademark Registry?”
Several responses to petitions were filed.
In Power Analytics Corp v. Operation Technology, Inc., Operations Technology Inc. submitted its response brief contending that “[t]he petition for certiorari is a generalized plea for this Court to issue additional guidance on patentability under 35 U.S.C. § 101” but that “the petition provides virtually no reason why this case is the right vehicle to provide such guidance—likely because under any approach to patent-eligibility under § 101, the patents here would be invalid.”
In Garmin USA, Inc. v. Cellspin Soft, Inc., Cellspin Soft, Inc. argued in its response brief that “[a] fundamental and deeply flawed premise of the Petition is that a court deciding a motion to dismiss on the pleadings based upon §101 . . . should not consider well-pled facts in the complaint.” According to Cellspin Soft, “[t]his would violate the longstanding, well-founded principle that for motions to dismiss on the pleadings, well-pled facts in the complaint must be accepted as true.”
In Straight Path IP Group, LLC v. Apple Inc., Cisco Systems, Inc. argued in its brief in opposition that “the petition itself does not identify what this Court is meant to resolve regarding the Question Presented: it does not discuss how Federal Circuit Rule 36(e) violates the Fifth Amendment.” Nor, according to Cisco, “does the petition refer to the Fifth Amendment or present an argument based upon due process.” Apple Inc. likewise filed its response brief in the same case, arguing that the Court should deny the petition because the petitioner “asks this Court to review an oft-denied, splitless question, unrelated to the dubious merits of its case, that would upend the practices of every Circuit and over a century of this Court’s precedents.”
In Neology, Inc. v. International Trade Commission, Kapsch TrafficCom USA, Inc., Kapsch TrafficCom Holding Corp., Kapsch TrafficCom Canada, Inc., Star Systems International Ltd., and Star RFID Co., Ltd. waived their right to respond to the petition.
New Supplemental Briefs
In Google LLC v. Oracle America, Inc., Google America, Inc. filed a supplemental brief responding to the government’s position that the Supreme Court should deny review in this copyright case. Google argues that “[t]he Solicitor General’s . . . effort to cabin the Federal Circuit’s fair use ruling as factbound is refuted by the 175 individuals, companies, and organizations that filed 15 amicus briefs in support of the petition.” According to Google, “[t]hose submissions recognize that the Federal Circuit has effectively prohibited the widely accepted industry practice of reimplementing software interfaces, inevitably causing serious harm to current practices and future innovation in the software industry.”
New Amicus Briefs
There is one new amicus brief to report.
In Athena Diagnostics, Inc. v. Mayo Collaborative Services, LLC, the New York Intellectual Property Law Association submitted an amicus brief supporting the petitioner. According to the NYIPLA, the “petition for a writ of certiorari presents issues fundamental to patent eligibility that are of exceptional importance to patent owners, to patent challengers, and to innovation across all industries” but “particularly . . . in the life sciences and medical fields where inventions relate to advancements in public health, including the diagnosis and treatment of life-threatening, chronic, and debilitating illnesses.”