Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. In granted cases, various briefs were filed in Romag Fasteners, Inc. v. Fossil, Inc. and Thryv, Inc. v. Click-to-Call Technologies, LP. In addition, one new pro se petition was filed, along with two new amicus briefs in other cases. Here are the details.
Activity in Granted Cases
In Romag Fasteners, Inc. v. Fossil, Inc., a case addressing whether willfulness is a prerequisite for an award of a trademark infringer’s profits, Fossil filed its response brief. In it, Fossil argues that Romag’s interpretation of the relevant statutory provision, which would “authorize a court to award a defendant’s profits even if the defendant’s conduct was innocent, not willful,” is foreclosed because of the “text of the statute and the traditional trademark law that it reflects.” Moreover, argues Fossil, “[o]pening the door to a defendant’s profits award without a requirement of willfulness will give opportunistic litigants a powerful tool to extort windfall settlements.”
In addition to Fossil’s response brief, a group of law professors filed an amicus brief in support of Fossil’s position. They argue that “traditional ‘principles of equity’ incorporated in the Lanham Act require willfulness as a prerequisite for disgorgement of profits,” and that “sound policy reasons support continuing to require willfulness as a prerequisite for profit awards.”
The government filed its reply brief in Thryv, Inc. v. Click-to-Call Technologies, LP, which addresses whether the Federal Circuit may review Patent Trial and Appeal Board determinations of timeliness with respect to filings of petitions for inter partes review of patents. According to the government, while Click-to-Call Technologies “argues that the institution decision . . . in this case was unlawful because a closely related provision, Section 315(b), precluded institution,” “[t]he plain text of Section 314(d) unambiguously bars judicial review of that claim.” Moreover, it contends, “[t]he structure of the [America Invents Act], the history of similar post-grant review procedures, this Court’s recent precedent, and the AIA’s purposes all reinforce that conclusion.”
Activity in Petitions Cases
Grants and Denials
The Supreme Court has not recently granted or denied any petitions in cases decided by the Federal Circuit.
In Sharpe v. United States, a pro se petitioner filed a petition seeking review of various questions related to the Navy’s decision to deny him certain categories of back pay associated with his military record after a finding that he was unlawfully discharged from service.
No new response briefs were filed. The respondents, however, waived their right to files response briefs in Nuvo Pharmaceuticals v. Dr. Reddy’s Laboratories Inc. (addressing patent law’s written description requirement) and Chestnut Hill Sound Inc. v. Apple Inc. (questioning the Federal Circuit’s practice of granting summary affirmances under Federal Circuit Rule 36).
New Amicus Briefs
In Francway v. Wilkie, the National Law School Veterans Clinic Consortium filed an amicus brief in support of the petitioner. The Consortium argues that “[t]he Federal Circuit’s decision to uphold the presumption of competency for VA examiners, by imposing a ‘requirement’ on the veteran to challenge competency in the first instance, places a significant burden on disabled veterans in a beneficent system designed to serve veterans.” The Consortium, moreover, contends that that “decision is wrong for three reasons.” First, “the practical impact of requiring veterans to challenge the competency of a VA examiner is a presumption that the examiner is competent.” Second, “data reveals that the VA is relying on incompetent VA examiners.” And, third, “requiring the veteran to first challenge a VA examiner’s competency before having access to that VA examiner’s curriculum vitae (CV) effectively insulates examiners from accountability in the VA system.”
In Intel Corp. v. Continental Circuits, LLC, former Federal Circuit Chief Judge Paul Michel filed an amicus brief arguing that the petition should be granted. He contends that, “[d]espite the predominant role that claim construction plays in determining patent rights and cases, the Federal Circuit’s claim-construction precedents have proven wholly inconsistent and its constructions unpredictable.”