This post summarizes recent activity at the Supreme Court in cases decided by the Federal Circuit.
- The Supreme Court received three new petitions for writs of certiorari in (1) ThermoLife International LLC v. Iancu, (2) SRAM, LLC v. FOX Factory, Inc., and (3) Halim v. United States.
- Aquesitive submitted a brief in opposition to the petition in BioDelivery Sciences International, Inc. v. Aquestive Therapeutics, Inc.
- Two replies were submitted to the Court, the first by Smith & Nephew in Smith & Nephew, Inc. v. Arthrex, Inc. and the second by TCL in TCL Communication Technology Holdings Limited v. Telefonaktiebolaget LM Ericsson.
Here are the details.
There is no new activity to report.
The Supreme Court received three new petitions for writs of certiorari.
First, in ThermoLife International LLC v. Iancu, ThermoLife asked the Supreme Court to consider the following two questions:
- “Whether the Federal Circuit violated the Chenery doctrine by making new factual findings in the first instance on appeal to affirm a decision of the Patent Trial and Appeal Board.”
- “Whether the administrative patent judges of the Patent Trial and Appeal Board are unconstitutionally appointed ‘principal’ officers whose decisions should be vacated and reheard by properly appointed officers regardless of when their appointments are challenged during appeal.”
Second, in SRAM, LLC v. FOX Factory, Inc., SRAM presented this question for the Court to review:
- “Whether the Federal Circuit erred in holding that, under 35 U.S.C. § 103, before a nexus can be presumed between objective indicia of nonobviousness and the patent claim, a patentee must first prove that a commercial product is ‘essentially the claimed invention’ – to the exclusion of all other product features.”
Finally, in Halim v. United States, a pro se petitioner presented a petition.
One new brief in opposition was filed with the Supreme Court in BioDelivery Sciences International, Inc. v. Aquestive Therapeutics, Inc. In its brief in opposition, Aquestive claims that the petition does not warrant Supreme Court review for two main reasons:
First, the Federal Circuit applied well-settled law to the procedural facts of this case. There is simply no conflict over the relevant law that would require this Court’s intervention. . . . Second, Petitioner’s invocation of ‘due process’ and the purported ‘negation’ and ‘nullification’ of judicial review does not amount to a ‘compelling reason’ that would justify this Court’s review.  Unable to point to any legitimate conflict, Petitioner resorts to references to ‘dangerous’ precedent and concerns for future petitioners at the Board. In doing so, Petitioner posits arguments that simply amount to a fact specific disagreement with the result of its failed IPR attempts.
Two new reply briefs were submitted to the Supreme Court.
First, in Smith & Nephew, Inc. v. Arthrex, Inc., Smith & Nephew contends in its reply brief that the three petitions for writ of certiorari in Arthrex should be granted because
[a]ll parties agree that this petition should be granted to decide ‘[w]hether administrative patent judges are “principal” or “inferior” Officers of the United States.’ . . . [And because] this case is ‘the ideal vehicle’ for deciding that important question because it is ‘the lead case,’  and the question was raised, decided, and addressed in multiple reasoned opinions below.
Smith & Nephew continues on to agree with the government’s suggestion that the Court should “consolidate the cases and realign the parties” and proposes a sequence of briefing and argument for the Court to follow.
Second, in TCL Communication Technology Holdings Limited v. Telefonaktiebolaget LM Ericsson, TCL submitted a reply brief contending:
Ericsson’s brief is an exercise in distraction. Ericsson understandably would prefer not to discuss the merits of the Federal Circuit’s deeply flawed Seventh Amendment decision. That ruling broke with longstanding precedent to create a jury-trial right in a case seeking the equitable relief of specific performance. The Federal Circuit applied this erroneous rule, moreover, to a critical part of the modern economy—the obligation to license standard-essential patents (SEPs) on fair, reasonable, and nondiscriminatory (FRAND) terms. As underscored by the outpouring of amicus support from leading companies, organizations, and scholars, it is extremely important that this Court review and reverse the Federal Circuit’s erroneous constitutional ruling and restore the traditional division of responsibility between judge and jury. None of Ericsson’s arguments offers a sound reason to decline review.
Waivers of Right to Respond
In Cheetah Omni LLC v. AT&T Services, Inc., both respondents, AT&T and Ciena, filed waivers of their rights to respond to the petition.