This post summarizes recent activity at the Supreme Court in cases decided by the Federal Circuit.
- The Supreme Court received the four new petitions for writs of certiorari in (1) Strand v. United States, (2) Comcast Cable Communications, LLC v. Promptu Systems Corp., (3) HZNP Finance Ltd. v. Actavis Laboratories UT, Inc., and (4) Martin v. Department of Homeland Security.
- Both the United States in Campbell v. United States and Ericsson, Inc. in TCL Communication Technology Holdings Limited v. Telefonaktiebolaget LM Ericsson submitted briefs in opposition to petitions.
- Two replies were submitted to the Court, the first by Andrea Lea in Lea v. United States and the second by Jake LaTurner in LaTurner v. United States.
- Five amicus briefs were filed in three cases: (1) United States v. Arthrex, Inc., (2) Arthrex, Inc. v. Smith & Nephew, Inc., and (3) Polaris Innovations Ltd. v. Kingston Technology Co.
Here are the details.
There is no new activity to report.
The Supreme Court received four new petitions for writs of certiorari.
In Strand v. United States, Strand asked the Supreme Court to review the following question:
- “[W]hether the Secretary of the Navy, is ‘acting through’ the Board for Correction of Naval Records as required by statute when he reweighs evidence and sets aside a decision of that Board that was supported by substantial evidence.”
In Comcast Cable Communications, LLC v. Promptu Systems Corp., Comcast asked the Court to consider:
- “Whether administrative patent judges are ‘principal’ or ‘inferior’ Officers of the United States within the meaning of the Appointments Clause.”
In HZNP Finance Ltd. v. Actavis Laboratories UT, Inc., NZNP asked the Court to grant review to consider the following quesiton:
- “Whether the ‘basic and novel properties’ identified in connection with a patent claim’s transitional phrase ‘consisting essentially of’ must independently satisfy the requirements of 35 U.S.C. § 112, ¶ 2, of the Patent Act, and the accompanying ‘reasonable certainty’ standard set forth in Nautilus, Inc. v. Biosig Instruments Inc., 134 S. Ct. 2120 (2014).”
Finally, in Martin v. Department of Homeland Security, a pro se petitioner presented a petition.
Two new briefs in opposition were filed with the Supreme Court.
First, in Campbell v. United States, the government filed its brief in opposition to the petition, which presented a question about the statute of limitations for a regulatory takings claim. In its opposition, the government claims that the Federal Circuit correctly applied relevant law and, therefore, the petition does not warrant Supreme Court review. Specifically, the United States argues:
Because the court below applied the correct legal framework, petitioners can claim at most that the court misidentified the precise point at which petitioners first suffered injury as a result of the government’s alleged coercive conduct. That kind of factbound request for error correction does not warrant this Court’s review, and the practical significance of the decision below is further diminished by the atypical theory underlying petitioners’ takings claims.
Second, Ericsson, Inc. submitted its brief in opposition to the petition in TCL Communication Technology Holdings Limited v. Telefonaktiebolaget LM Ericsson. In this case, TCL asked the Court to decide “[w]hether a patent owner required to license its standard-essential patents on fair, reasonable, and nondiscriminatory terms has a Seventh Amendment right to a jury trial in a proceeding seeking the equitable relief of specific performance.” In its brief, Ericsson refutes TCL’s Seventh Amendment claims and defends the Federal Circuit’s decision below. Ericsson contends:
The court of appeals’ decision is, in any event, correct. TCL and its amici complain that juries cannot be trusted to decide issues of patent valuation. But the Framers resolved that issue 200 years ago. In our system, juries determine damages in all sorts of cases, including for the unlawful use of patented technology. TCL’s novel theory that a court can order retrospective ‘equitable consideration’ for past-due payment obligations is not supported by the cases it cites and is squarely foreclosed by cases it ignores.
In her reply brief, Lea contends that
[t]he end result of the Government’s bait-and-switch tactics is a money grab of epic proportions: it has raked in over $3 billion in bond proceeds from Petitioner and the other States that advanced escheatment-based claims in the trial court, and it has also cleared the way to seize the entire $26 billion of matured-but-unredeemed bonds nationwide. Respondent cannot credibly help itself to a windfall of this magnitude and then claim that its machinations ‘do not warrant this Court’s review.’
LaTurner also submitted his reply, in which he similarly attempts to refute the government’s assertion that a state cannot transfer abandoned Treasury bonds to itself. LaTurner concludes:
Over the last several decades, the government has taken a range of positions concerning States’ rights to be paid the proceeds of abandoned savings bonds. Those positions have little in common but this: the government does not want to repay the money it borrowed from its citizens. The result of the government’s inconsistency is a circuit split and a Treasury Department seeking to renege on the government’s full faith and credit.
Five new amicus briefs were submitted to the Court in three cases related to the Appointments Clause:
- In United States v. Arthrex, Inc., Askeladden LLC filed an amicus brief with the Court in favor of the United States.
- US Inventor, Inc. submitted its amicus brief in favor of the petitioner in Arthrex, Inc. v. Smith & Nephew, Inc.
- TiVo Corp. also submitted an amicus brief in favor of the petitioner in Arthrex, Inc. v. Smith & Nephew, Inc. in addition to submitting an almost identical amicus brief in favor of the petitioner in Polaris Innovations Ltd. v. Kingston Technology Co.
- The New York Intellectual Property Law Association filed a singular amicus brief for the two petitions in United States v. Arthrex, Inc. and Polaris Innovations Ltd. v. Kingston Technology Co. supporting a grant of the petitions in both cases.