This post summarizes recent activity at the Supreme Court in cases decided by the Federal Circuit.
- The Supreme Court received one new petition for writ of certiorari this week in the patent case Duke University v. Biomarin Pharmaceutical Inc.
- Both the Honorable Randall R. Rader and High 5 Games submitted two new amicus briefs in support of the petitioner to the Court in the petition The Chamberlain Group, Inc. v. Techtronic Industries Co.
Here are the details.
There is no new activity to report.
Only one new petition for writ of certiorari was filed with the Supreme Court this week in Duke University v. Biomarin Pharmaceutical Inc. In this petition, Duke University hopes to have the Court review the Federal Circuit’s Rule 36 judgment decided against them in October of last year. In their petition, Duke University argues that the Court should consider their case in light of the recent in Arthrex, Inc. v. Smith & Nephew, Inc. and also to reestablish the role of objective evidence of nonobviousness. Regarding the Arthrex decision, Duke University argues:
Just like the patent owner in Arthrex, Duke’s patent rights were abrogated by an unconstitutionally appointed panel of APJs. And even though Duke timely raised this intervening change of law in a petition for rehearing, the Federal Circuit declined to apply that change here. Indeed, wielding forfeiture as a blunt instrument, the court has tried to confine the Appointments Clause infection to a limited number of Board proceedings—only those with clairvoyant patent owners or fortuitous post-Arthrex timing.
In addition to the post-Arthrex argument, the Petitioner also mentions that the Supreme Court has intervened in similar cases regarding objective evidence. Specifically, the Petitioner contends:
Objective evidence plays a critical role because it is “not just a cumulative or confirmatory part of the obviousness calculus but constitutes independent evidence of nonobviousness.” Like the rest of the obviousness analysis, consideration of objective evidence requires “an expansive and flexible approach.” And where the Federal Circuit has imposed its own rigid rules in the name of uniformity and consistency, this Court has intervened.
Finally, two new amicus briefs were submitted to the Supreme Court in The Chamberlain Group, Inc. v. Techtronic Industries Co. both in favor of the Petitioner, The Chamberlain Group, Inc. In the first amicus brief, submitted by the Honorable Randall R. Rader and ChargePoint, Inc., the parties argue that the “implicit judicial exception to 35 U.S.C. § 101 for abstract ideas should be narrowly construed” and that “[u]ncertainty [makes] it impossible for lower courts to narrowly construe the exception.” Specifically, Amici argue:
[T]his Court’s ‘standard approach of construing a statutory exception narrowly to preserve the primary operation of the general rule’ should be applied to the implicit statutory exception to 35 U.S.C. § 101. . . . [U]ncertainty is making it impossible for lower courts to narrowly construe the exception and resist attempts to wield it like a sledgehammer.
Similarly, High 5 Games, LLC in their amicus brief also argue that the Section 101 exception should be narrowly construed and the Federal Circuit erroneously applied precedent to reach its conclusion. High 5 Games claims:
The Federal Circuit, however, has repeatedly ignored the Court’s reasoning and holdings in Alice. Rather than narrowly apply Alice’s patent ineligibility framework as directed to achieve its expressed aims, the Federal Circuit has erroneously used Alice as the basis to vastly expand those limited recognized implicit exceptions to the broad scope of patent eligibility, adopting a vague and often incomprehensible analysis that has resulted in invalidation or rejection of legions of statutorily eligible patents and patent applications. This Court’s intervention is therefore urgently required to reverse and prevent further harm to the U.S. patent regime and the economic engine it drives.