This post summarizes recent activity at the Supreme Court in cases decided by the Federal Circuit.
- In Google LLC v. Oracle America, Inc., Google and Oracle submitted supplemental briefs addressing the correct standard of review for the second question presented in the case.
- The following two petitions for writ of certiorari were submitted to the Supreme Court: (1) Customedia Technologies, LLC v. Dish Network Corp. and (2) Essity Hygiene and Health AB v. Cascades Canada ULC.
- Arthrex, Inc. submitted its reply to the Court in the Appointments Clause petition Arthrex, Inc. v. Smith & Nephew, Inc.
- In The Chamberlain Group, Inc. v. Techtronic Industries Co., Techtronic filed its brief in opposition to the petitioner’s argument for granting certiorari.
Here are the details.
In Google LLC v. Oracle America, Inc., both Google and Oracle America submitted supplemental briefs explaining the correct standard of review for the second question presented, per the Court’s request. The second question presented in the case addresses “[w]hether . . . [the] petitioner’s use of a software interface in the context of creating a new computer program constitutes fair use.” Oracle argues in its brief that the correct standard of review for the question is de novo. Specifically, Oracle contends:
De novo review is appropriate because fair use hinges on legal judgments that balance competing interests of property rights, the progress of science and the arts, and free expression, and because copyright holders and the public rely on the stable development of the doctrine.
On the other hand, Google, in its brief, claims the Federal Circuit erred when applying a de novo standard of review and the correct standard is when “construing all the evidence in support of the verdict—a reasonable jury could find fair use.” Google argues that
[the] Court should reverse and reinstate the judgment in Google’s favor. Remanding the case for a third appeal before the Federal Circuit would unnecessarily extend this decade-old litigation and deprive the lower courts and the software industry of certainty on the lawfulness of the longstanding, widespread practice of reusing software interfaces.
The Supreme Court received two new petitions for writs of certiorari.
First, in Customedia Technologies, LLC v. Dish Network Corp., Customedia asked the Supreme Court to consider the following three questions:
- “Whether a court of appeals can invoke forfeiture to refuse to address an Appointments Clause violation in a pending appeal despite an intervening change in law.”
- “Whether the PTAB exceeded its statutory authority under the Leahy-Smith America Invents Act and deprived Customedia of due process when the PTAB changed the petitioner’s asserted grounds for review in the final written decision.”
- “Whether claims to computer systems reciting the addition of specific computer hardware, which alters and interferes with the conventional operation of the computer system, are directed to patent-eligible subject matter within the meaning of 35 U.S.C § 101.”
Second, in Essity Hygiene and Health AB v. Cascades Canada ULC, Essity Hygiene and Health presented this question for the Court to review:
- “Following a precedential decision sustaining an Appointments Clause challenge, does a court have discretion to apply the decision in pending cases where it has not already been raised, and if so, under what circumstances should it exercise that discretion?”
[t]he government, Smith & Nephew, and Arthrex all agree that this Court should address the court of appeals’ attempt to remedy the Appointments Clause violation by severing APJ tenure protections, together with the underlying constitutional question. There is no dispute among the parties that Arthrex’s case is the best vehicle in which to do so. The parties thus agree that Arthrex’s petition should be granted.
After reminding the Court of the parties’ desire to have the petition granted, Arthrex goes on to refute Smith & Nephew’s position by contending that
Smith & Nephew’s merits arguments on severability, by contrast, are premature and without merit. Smith & Nephew’s timeliness arguments are similarly unfounded.
One new response was submitted to the Supreme Court in The Chamberlain Group, Inc. v. Techtronic Industries Co. with Techtronic Industries submitting its brief in opposition to granting the petition. In their brief, Techtronic begins by claiming that Chamberlain’s arguments fail to take the record into account. Techtronic argues:
The Petition presents this case as suitable for review only by mischaracterizing the holding below and disregarding the record. Contrary to Chamberlain’s assertions to this Court, the court of appeals expressly considered the claims as a whole, and Chamberlain’s current arguments about the scope of preemptive effect of its claims conflict directly with the arguments and evidence it presented to the jury.
Furthermore, Techtronic illustrates the potential problems created if the Court decides to grant certiorari. Techtronic claims that
[t]he Petition asks for nothing more than case-specific error correction, and resolving these arguments would entangle this Court deeply in the trial record because of the serious inconsistencies between Chamberlain’s current arguments and its arguments to the jury, PTAB, and Federal Circuit.
Waivers of Right to Respond
Two new waivers of right to respond were filed with the Supreme Court.
- In HZNP Finance Ltd. v. Actavis Laboratories UT, Inc., Activis Laboratories UT, Inc. submitted its waiver of right to respond to the Court.
- Also, the United States filed its waiver of right to respond for the petition Blodgett v. United States.