Petitions / Supreme Court Activity

Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. With respect to granted cases, there is no activity to report this week. With respect to petitions cases, new petitions were filed in five cases, two amicus briefs were filed in another case, and the Court denied a petition. Here are the details.

Granted Cases

There is activity to report this week in granted cases.

Petitions Cases

New Petitions

Five new petitions were filed.

In Baley v. United States, Baley asked the Court to review the following question:

  • “Whether, against the legal backdrop of Congress’s and this Court’s recognition of the primacy of state law to determine, quantify, and administer water rights, a federal court may deem federal agency regulatory action under the Endangered Species Act to constitute the adjudication and administration of water rights for tribal purposes.”

In Blackbird Tech LLC v. Health in Motion LLC, Blackbird Tech asked the Court to consider the following question:

  • “Can a court consider factors unrelated to the instant case in determining whether a particular case is exceptional, i.e., whether those outside factors are relevant to the strength of a party’s litigating position in that particular case, or the manner in which that particular case was litigated?”

In Actavis Laboratories FL, Inc. v. Nalpropion Pharmaceuticals LLC, Actavis presented the following question:

  • “Whether § 112 requires a patent’s specification to contain a written description of all of the limitations of a patent’s claims, not just a ‘substantially equivalent’ disclosure.”

In Fote v. Iancu, Fote presented this question:

  • “Whether a court of appeals must provide an opinion explaining its reasoning in an appeal that involves a complex and unsettled area of the law and in which a written opinion would likely provide the appellant with a viable basis for seeking rehearing, rehearing en banc, or certiorari.”

And in Chrimar Systems, Inc. v. Ale USA Inc., Chrimar asked the Court to review the following two questions:

  1. “Whether the Federal Circuit may apply a finality standard for patent cases that conflicts with the standard applied by this Court and all other circuit courts in nonpatent cases.”
  2. “Whether a final judgment of liability and damages that has been affirmed on appeal may be reversed based on the decision of an administrative agency, merely because an appeal having nothing to do with liability, damages or the proper calculation of the ongoing royalty rate is pending.”

Amicus Briefs

In General Electric Co. v. United Technologies Corp., two amicus briefs were filed supporting the petitioner. It had asked the Court to consider whether “competitive harm alone suffices to confer Article III standing to appeal an [inter partes review] determination, or whether  an appellant must also show concrete plans for future activity that creates a substantial risk of a future patent infringement action.”

First, Frontier Communications Corporation filed a brief arguing that “[o]nly the parent of a patent lawyer could love the Federal Circuit’s peculiar Article III progeny, which Judge Hughes accurately, albeit charitably, described in his concurrence below as ‘a patent-specific approach to the doctrine of competitor standing that is out of step with Supreme Court precedent.’”

Second, a group of companies (Unified Patents, LLC; Engine Advocacy; Cable Television Laboratories, Inc.; The R Street Institute; and The Niskanen Center) filed a brief contending that, “[f]or startups and established innovators alike, the Federal Circuit’s lopsided regime that stacks the appellate-review deck against patent challengers will undermine the very efficiencies in the patent quality ecosystem that Congress sought to promote when it revamped the administrative patent review process.”


The Court denied the petition in Automotive Body Parts Ass’n v. Ford Global Technologies, LLC, which presented a question related to the exhaustion and repair-reconstruction doctrines as applied in design patent cases.