Petitions / Supreme Court Activity

Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. In granted cases, the Court postponed one oral argument. In petitions cases, one new petition was filed in a patent case presenting questions related to retroactive application of inter partes review and waiver with respect to an Appointments Clause challenge. Two responses in opposition to petitions were filed in patent cases raising questions related to the written description requirement and standing to appeal in inter partes review proceedings. There was one new reply brief filed in a veterans case concerning attorneys fees. And several amicus briefs were filed in three cases. Here are the details.

Granted Cases

The only new activity to report regarding granted cases is that in Google LLC v. Oracle America, Inc. the Court postponed the oral argument until the October 2020 Term.

Petition Cases

New Petition

In Arthrex, Inc. v. Smith & Nephew, Inc., Arthrex asked the Court to review the following two questions:

  1. “Whether the retroactive application of inter partes review to patents that were applied for before the America Invents Act violates the Fifth Amendment.”
  2. “Whether a court of appeals can invoke forfeiture principles to refuse to address a constitutional claim in a pending appeal despite an intervening change in law.”

New Response

Two new responses in opposition to petitions were filed.

In Actavis Laboratories FL, Inc. v. Nalpropion Pharmaceuticals LLC, Nalpropion filed its response in opposition to the petition, which presented a question related to patent law’s written description requirement. In its response, Nalpropion argued that “[t]he Federal Circuit correctly determined that the District Court did not clearly err in its factual finding that, based on the patent-in-suit and Nalpropion’s expert testimony, one skilled in the art would understand the inventors had possession of their invention regardless of whether they used USP 2 or a ‘substantially equivalent’ method such as USP 1 to obtain the claimed dissolution profile.” With respect to the question presented, moreover, Nalpropion contends that “Actavis mischaracterizes that ruling to make it seem like the Court’s reference to ‘substantially equivalent’ subject matter created a new legal standard” when “[i]t did not.”

In General Electric Co. v. United Technologies Corp., Raytheon, which filed a change of name last week, submitted a response in opposition to the petition. The petition raised a question related to standing in inter partes review proceedings to cancel patent claims. In the brief, Raytheon pointed out that the “Court has twice recently rejected petitions raising similar challenges to the Federal Circuit’s insistence that parties dissatisfied with the outcome of an inter partes review proceeding satisfy Article III before obtaining appellate review.” Raytheon goes on to highlight that “GE fails to mention that one of those petitions precipitated a CVSG and Solicitor General brief recommending against certiorari.” On the merits, Raytheon argues that, “[a]s the United States explained, the Federal Circuit’s approach properly requires the party appealing a Patent Office decision to establish injury-in-fact under the same rules and applying the same principles that govern in every other context.”

Waivers of Right to Respond

Waivers of the right to respond to petitions were filed in three cases.

In CANVS Corp v. Barrett, the government waived its right to respond.

In Willowood, LLC v. Syngenta Crop Protection, LLC, Syngenta Crop Protection waived its right to respond.

And in Fote v. Iancu, the government also waived its right to respond.

New Reply

In Procopio v. Wilkie, Procopio argued that certiorari should be granted on its questions related to the grant of attorneys fees under the Equal Access to Justice Act because “the Secretary fails to address the basic principles of statutory construction” and “[i]n doing so . . . ignore[s] the Congressional intent that veterans should enjoy a paternal and friendly system to streamline compensation.”

Amicus Briefs

Several amicus briefs were filed in three cases this week. You can find a link to each brief below.

Three new amicus briefs in favor of the petitioners were filed in Baley v. United States, which involves a question at the intersection of the Endangered Species Act, state-based and federal water rights, and the Takings Clause:

In Actavis Laboratories FL, Inc. v. Nalpropion Pharmaceuticals LLC, which involves a question concerning patent law’s written description requirement, a new amicus brief was filed in favor of the petitioner:

Similarly, in Chrimar Systems, Inc. v. Ale USA Inc., which involves two questions related to the finality of district court judgments as compared to decisions of the Patent Trial and Appeal Board, three new amicus briefs were filed in favor of the petitioners: