This post summarizes recent activity at the Supreme Court in cases decided by the Federal Circuit.
- The Supreme Court received three new petitions for writ of certiorari in (1) Blodgett v. United States, (2) United States v. Image Processing Technologies LLC, and (3) Cheetah Omni LLC v. AT&T Services, Inc.
- The United States, Arthrex, Inc, and Smith & Nephew, Inc. filed related responses in the following petitions: (1) Polaris Innovations Ltd. v. Kingston Technology Co., (2) Arthrex, Inc. v. Smith & Nephew, Inc., (3) Smith & Nephew, Inc. v. Arthrex, Inc., and (4) United States v. Arthrex, Inc.
- Only one waiver of right to respond was filed with the Court this week in Morsa v. Iancu by Andrei Iancu, Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office.
Here are the details.
Granted Cases
There is no new activity to report.
Petition Cases
New Petitions
The Supreme Court received three new petitions for writ of certiorari this week. First, in Blodgett v. United States, the petitioners argue that the Federal Circuit erred during the pleading stage and the Federal Circuit erred when finding no Fifth Amendment ‘takings without just compensation.'” Blodgett argues:
“The court below never applied any two-step takings analysis and never presumed the truth of well-pled factual allegations, or made any inferences in favor of Plaintiff Blodgett.” As well as, “breach of contract by the government constituted a Fifth Amendment takings requiring just compensation.”
Secondly, in United States v. Image Processing Technologies LLC, the petitioner posits that “the [Federal Circuit’s] Appointments Clause and forfeiture holdings are erroneous and warrant [the Supreme Court’s] review.” This petition marks yet another petition for writ of certiorari in conjunction with the petition in Arthrex, Inc. v. Smith & Nephew, Inc. The government argues:
“The petition for a writ of certiorari should be held pending this Court’s disposition of the petition for a writ of certiorari in United States v. Arthrex, Inc. . . . and any further proceedings in this Court, and then disposed of as appropriate in light of the Court’s decision in that case.”
“Lastly, in Cheetah Omni LLC v. AT&T Services, Inc., Cheetah Omni seeks Supreme Court review for the decision below where ‘[t]he Federal Circuit affirmed, holding that all continuation patents are impliedly licensed under the General Protecht presumption unless the patent owner makes a contrary intent clear in the license.'” Specifically, Cheetah Omni asserts their petition should be granted because:
“The Federal Circuit improperly adopted a federal common law rule that all continuation patents are impliedly licensed.”
New Responses
Parties related to the recent controversial Arthrex, Inc. v. Smith & Nephew, Inc. petition filed numerous briefs addressing the Arthrex Appointment Clause issues. For example, the United States filed a memorandum of respondent for the following petitions: (1) Polaris Innovations Ltd. v. Kingston Technology Co., (2) Arthrex, Inc. v. Smith & Nephew, Inc., and (3) Smith & Nephew, Inc. v. Arthrex, Inc. In their memorandum, the United States contends:
“The three petitions subsequently filed by the private parties in [the above] cases present questions that are the same as or closely related to those presented in the government’s petition [in United States v. Arthrex, Inc.] If the government’s petition is granted, the three petitions filed by the private parties should also be granted, the cases should be consolidated, and the Court should direct the parties to address a common set of questions as set forth below.”
Similarly, Arthrex, Inc. filed a memorandum in response for the petitions of Smith & Nephew, Inc. v. Arthrex, Inc. and United States v. Arthrex, Inc. In the Petitioner’s memorandum, Arthrex asserts:
“The court of appeals correctly held that administrative patent judges are principal officers who are not appointed in the manner the Appointments Clause requires—by the President with the advice and consent of the Senate.”
Likewise, in Arthrex, Inc. v. Smith & Nephew, Inc. and United States v. Arthrex, Inc., Smith & Nephew, Inc. filed a brief of respondents to the Supreme Court this week. Smith & Nephew summarizes their stance as follows:
“[Smith & Nephew’s] position is that there is no constitutional ‘problem’ to ‘solve’ in this case—if the [administrative patent judges] are inferior officers, then all these other issues evaporate. If, however, the Court were to find any constitutional shortcomings in the extant system of administrative patent review, S&N submits that it could consider a range of potential alternative solutions in addition to those adopted by the court below or advanced by Arthrex.”
Waivers of Right to Respond
Finally, the Supreme Court received one waiver of right to respond this week, submitted by Andrei Iancu, Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office, for the petition Morsa v. Iancu.