This post summarizes recent activity at the Supreme Court in cases decided by the Federal Circuit.
- The Supreme Court received three new petitions this week: (1) Personal Audio, LLC v. CBS Corp., (2) ESIP Series 2, LLC v. Puzhen Life USA, LLC, and (3) Medina v. Federal Aviation Administration.
- Nine briefs were filed in response to the petition in United States v. Image Processing Technologies LLC.
- Three replies were submitted to the Court, the first by BioDelivery in BioDelivery Sciences International, Inc. v. Aquestive Therapeutics, Inc., the second by Chamberlain in The Chamberlain Group, Inc. v. Techtronic Industries Co., and the third by Campbell in Campbell v. United States.
- One supplemental brief was filed by Ameranth in Ameranth, Inc. v. Domino’s Pizza, LLC.
- Lastly, nine waivers of right to respond were submitted to the Court in three cases: (1) United States v. Image Processing Technologies LLC, (2) Sanders v. United States, and (3) Michelson v. Department of the Army.
Here are the details.
There is no new activity to report.
The Supreme Court received three new petitions for writs of certiorari.
In Personal Audio, LLC v. CBS Corp., Personal Audio asked the Court to review the following four questions:
- “Must the collateral estoppel effect of an inter partes review be raised and litigated in the appeal of the inter partes review, rather than in the court in which estoppel is sought?”
- “Should an inter partes review that violated the Appointments Clause of the Constitution be given collateral estoppel effect over a prior jury verdict?”
- “Whether the Patent and Trademark Office’s decision invalidating Petitioner’s patent in inter partes review violates the Reexamination Clause of the Seventh Amendment by overturning a jury’s findings of facts in the prior district court action?”
- “Did the Petitioner waive the above arguments by acknowledging the state of the Federal Circuit case law?”
In ESIP Series 2, LLC v. Puzhen Life USA, LLC, ESIP asked the Court to review the following two questions:
- “Whether Board decisions that are arbitrary and capricious, exceed the Board’s statutory jurisdiction from the start, and are made by administrative patent judges holding that position in violation of the Appointments Clause, which decisions are not reviewed by any principal officer in the Executive Branch, are also precluded from review by an Art. III court.”
- “Whether the Federal Circuit’s ruling in ESIP Series 2, LLC v. Puzhen Life USA, LLC, 958 F.3d 1378 (Fed. Cir. 2020) improperly extends the scope of Thryv, Inc. v. Click-to-Call Techs., LP, 140 S.Ct. 1367 (2020).”
In Medina v. Federal Aviation Administration, the following is listed under the questions presented:
Alvin E Medina, the Petitioners, request this Petition for Writ of Certiorari be granted given the salient issue equitable tolling, and the constitutional matter of proper notice of appeal rights and proper certificate of service of a decision is absent. When a Federal Circuit Courts has jurisdiction of its own court’s precedent, “do you throw the baby out with the bath water”? Notice of appeal rights 5 C.F.R. § 1201.21 (a) to get you to 5 U.S.C. § 7703 (b) (1) (A); and 5 U.S.C. § 7121 (f) (“Section 7303…..pertaining to judicial review shall apply to the award of an arbitrator in the same manner and under the same conditions as if the matter had been decided by the Board”) An arbitrator “issues notice” on “the date on which” the arbitrator “sends the parties the final decision, whether electronically, by regular mail, or by other means.”1) (A); the 60 day time limit to lead you to the federal court to appeal a decision is silent is that equitable tolling? Notice of Appeal Rights on March 29, 2019, and “[t]he arbitrator’s decision letter was silent on the Petitioner appeal rights in this process,” and “had no instructions, guidance, or any language on where, when, or how to file an appeal.” Petition for Review should have been granted under 5 U.S.C. § 7703 (b) (1) (A); and 5 U.S.C. § 7121 (f). Pro-se party must be afforded the same protections mandated by the rules of the MSPB, and the constitution. 28 U.S Code § 2107.
Nine new briefs were filed in response to the petition in United States v. Image Processing Technologies LLC:
- Brief of Vilox Technologies, LLC in opposition submitted.
- Brief of Respondent of RPM International, Inc. submitted.
- Brief of Sound View Innovations, LLC in opposition submitted.
- Brief of Micron Technology, Inc. in support submitted.
- Brief of Rovi Guides, Inc. in opposition submitted.
- Brief for Respondent of Comcast Cable Communications, LLC submitted.
- Brief of VirnetX Inc. in opposition submitted.
- Brief of Boloro Global Limited in opposition submitted.
- Brief of Merck Sharp & Dohme Corp. in support submitted.
Three new reply briefs were submitted to the Supreme Court.
In BioDelivery Sciences International, Inc. v. Aquestive Therapeutics, Inc., BioDelivery filed its reply arguing that Aquestive’s argument that certiorari should be denied because the Federal Circuit reviewed the Board’s decisions on remand “is factually wrong” and “[t]o the extent that the Federal Circuit performed any ‘review’ of the decisions on remand in its order dismissing Petitioner’s appeal for lack of authority to review those decisions, that ‘review’ is inadequate.” BioDelivery continues on to contend that
[t]here can be few IPR issues more important and having broader implications than whether an instituted IPR can be terminated by the Board at any time and at its discretion, without any possibility of appeal. The Federal Circuit’s ratification of this alleged Board authority risks depriving every petitioner in an instituted IPR of any procedural due process rights. The consequences of the Dismissal Order reach far beyond appeals of final written decisions in which the Board improperly limited its review to a subset of petition challenges. Under the Dismissal Order, the Board may choose—at any time and at its discretion—not to issue a final written decision.
In The Chamberlain Group, Inc. v. Techtronic Industries Co., Chamberlain filed its reply asserting that
[p]erhaps the best proof that the Federal Circuit’s refusal to assess claims as a whole under § 101 is indefensible is that Techtronic makes no meaningful effort to defend it. The brief in opposition concedes that examining claims in their entirety is essential at each step of Alice’s patent-eligibility framework. That is the only way to properly cabin § 101’s narrow, implicit exceptions: by accurately assessing the role, if any, that an abstract idea, natural law, or physical phenomenon plays in the overall invention. But Techtronic cannot show that the Federal Circuit actually did so—either here or in the other flawed decisions cited in the petition and issued since it was filed. Techtronic cannot defend the court’s reduction of step one to an analysis of the ‘claimed advance’ alone, and step two to an assessment of individual elements in isolation. It does not even try to reconcile that entrenched approach with this Court’s holding that ‘[i]t is inappropriate to dissect the claims into old and new elements and then to ignore the presence of the old elements in the analysis.’ . . . The time has come for this Court to revive that innovation incentive by reversing the Federal Circuit’s wayward gloss on Alice’s two-step framework.
In Campbell v. United States, Campbell filed its reply urging the Court to grant the petition “to correct the Federal Circuit’s judgment that conflicts with this Court’s seminal decisions.” Campbell contends that
[t]he significance of this case, however, extends well beyond its borders. The Government’s response to the dramatic economic slowdown precipitated by COVID-19 lockdowns has included a raft of recourse loan programs under the ‘Main Street Lending Program.’ The statute of limitation issue raised here—along with the substantive issues remaining should the petition be granted and the decision below reversed and remanded—provide the Court with an opportunity at the beginning of a financial crisis, instead of at the middle or end of it, to establish the constitutional boundaries of governmental action when the government is the sole and exclusive source of rescue financing for a distressed business.
One new supplemental brief was filed by Ameranth in Ameranth, Inc. v. Domino’s Pizza, LLC to “inform the Court of new case law and intervening developments subsequent to the filing of its petition for a writ of certiorari in this case.” Ameranth takes the position that “[t]hese recent matters bear directly on and illuminate the Due Process question presented in Ameranth’s petition” and that they bolster its arguments for granting review.
Waivers of Right to Respond
In United States v. Image Processing Technologies LLC, seven new waivers of right to respond were filed:
- Dali Wireless Inc. submitted its waiver of right to respond.
- Concert Pharmaceuticals, Inc. submitted its waiver of right to respond.
- Personalized Media Communications, LLC submitted its waiver of right to respond.
- SZ DJI Technology Co., Ltd. submitted its waiver of right to respond.
- Sanofi Pasteur Inc. and SK Chemicals Co., Ltd. submitted its waiver of right to respond.
- Supercell Oy submitted its waiver of right to respond.
- Amgen Inc. and Amgen Manufacturing Liited submitted its waiver of right to respond.
In Sanders v. United States, the United States submitted its waiver of right to respond.
Lastly, in Michelson v. Department of the Army, the Department of the Army submitted its waiver of right to respond.