Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. In granted cases, the Court issued orders on motions for divided arguments and received two reply briefs. In petitions cases, the Court granted a petition, denied two petitions, and received a new petition and several briefs.
Activity in Granted Cases
The Court granted a motion for divided argument in Thryv, Inc. v. Click-To-Call Technologies, LP, a case addressing whether the Federal Circuit may review time bar determinations made by the Patent Trial and Appeal Board at the institutional stage of inter partes review proceedings. As a result, the petitioner will divide its time for oral argument with the government. The oral argument in this case is scheduled for December 9.
In the consolidated cases of Maine Community Health Options v. United States, Moda Health Plan, Inc. v. United States, and Land of Lincoln Mutual Health Insurance Co. v. United States, the petitioners all filed their reply briefs. These cases present various questions related to the Federal Circuit’s finding that an appropriations rider impliedly repealed a prior statutory payment obligation by the federal government.
- In its reply brief, Maine Community Health Options argues the government abandoned one argument and that its “two remaining theories . . . are inconsistent with the text of the statutes as written; inconsistent with basic appropriation law; and inconsistent with bedrock canons of statutory interpretation.”
- For its part, Moda Health Plan argues that “[t]he canon against implied repeals, the presumption against retroactivity, and the plain text all point in the same direction here: Congress’ restriction on the use of specific funds to satisfy an obligation does not make the obligation go away.” It concludes that “[n]o other rule comports with due process, basic fairness, or government accountability.”
- Last, Land of Lincoln Mutual Health Insurance Co. argues in its brief that “[t]his case merely enforces the plain language of Congress’s own handiwork in the Tucker Act for breaches of Congress’s money-mandating commitments.”
These briefs may be found on the case page for Maine Community Health Options v. United States. The oral argument in these cases is set for December 10. Notably, the Court recently denied a joint motion by the petitioners for enlargement of time for oral argument and for a divided argument.
The Court scheduled oral argument in Romag Fasteners, Inc. v. Fossil, Inc. for January 14. The question presented in this case asks whether willful infringement is a prerequisite for disgorgement of trademark infringers’ profits under the Lanham Act.
Activity in Petitions Cases
Grants and Denials
- “Whether copyright protection extends to a software interface.”
- “Whether, as the jury found, petitioner’s use of a software interface in the context of creating a new computer program constitutes fair use.”
By contrast the Court denied the petitions in Straight Path IP Group, LLC v. Apple Inc. (asking whether summary affirmances under Rule 36 violate the Fifth Amendment) and Zafer Construction Co. v. Army Corps of Engineers (presenting questions related to mistaken bids under government contract law).
One new petition was filed in the last week. In Cisco Systems, Inc. v. SRI International, Inc., Cisco asks the Court to consider “[w]hether patent claims that recite only the abstract idea of collecting and analyzing data are patent-ineligible under 35 U.S.C. § 101 and Alice.”
A reply in support of the petition was filed in Amarin Pharma, Inc. v. International Trade Commission. The question presented in this case relates to the intersection of the Lanham Act, the Tariff Act, and the Food, Drug and Cosmetic Act. In the reply, Amarin argues that “[t]he decision below deepens a circuit split” and “also raises important questions concerning whether one agency’s discretion not to enforce a statute can suspend a different agency’s obligations to enforce a different statute over which the first agency has no authority.”
New Amicus Briefs
An amicus brief was filed in Intel Corp. v. Continental Circuits, LLC by the High Tech Inventors Alliance. This group is in favor of granting the petition, which asks the Court to review how courts should construe patent claims. In its brief, the Alliance argues that “[f]or two decades, scores of Federal Circuit decisions have construed patents based on the acontextual meaning of their claim language, while scores of other Federal Circuit decisions have done the opposite, presumptively restricting claims to their contextual meaning.” The Alliance seeks to show in its brief “how this persistent divide harms the members of Amicus Curiae, other U.S. technology companies, and the proper and efficient operation of our patent system.” The Court will consider this case at its conference on December 6.