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 in (1) Vilox Technologies, LLC v. Iancu, (2) Comcast Cable Communications, LLC v. Rovi Guides, Inc., and (3) Drevaleva v. United States.
- One new brief in opposition was filed with the Court by Taser in Phazzer Electronics, Inc. v. Taser International, Inc.
- One new reply brief was filed with the Court by Sanofi-Aventis in Sanofi-Aventis Deutschland GMBH v. Mylan Pharmaceuticals Inc.
- Lastly, one waiver of right to respond to the petition in Customedia Technologies, LLC v. Dish Network Corp. was filed with the Court by Dish Network.
Here are the details.
There is no new activity to report.
The Supreme Court received three new petitions for writs of certiorari.
In Vilox Technologies, LLC v. Iancu, Vilox asked the Court to review the following two questions:
- “Whether the court of appeals’ severance remedy of the Appointments Clause violation of Administrative Patent Judges (APJs) is consistent with congressional intent, where Congress has long considered tenure protections essential to secure the independence and impartiality of administrative judges.”
- “Whether the court of appeals correctly held that the elimination of APJ tenure protections was sufficient to render APJs inferior officers, even though their decisions still are not reviewable by any principal executive officer.”
In Comcast Cable Communications, LLC v. Rovi Guides, Inc., Comcast asked the Court to review the following two questions:
- “Whether, for purposes of the Appointments Clause, U.S. Const. art. II, § 2, cl. 2, administrative patent judges of the United States Patent and Trademark Office are principal officers who must be appointed by the President with the Senate’s advice and consent, or ‘inferior Officers’ whose appointment Congress has permissibly vested in a department head.”
- “Whether the court of appeals erred by adjudicating the patent owner’s Appointments Clause challenge, even though it did not present that challenge to the agency.”
In Drevaleva v. United States, Drevaleva asked the Court to review the following three questions:
- “Can the U.S. Court of Federal Claims compel an indigent Title VII Plaintiff to pay a filing fee at the time when the Plaintiff doesn’t have money at all, and the Plaintiff is financially ineligible to pay a filing fee?”
- “Can the U.S. Court of Federal Claims compel the indigent Plaintiff to pay a filing fee ‘within 10 days’ without identifying from what date the calculation of the time starts – from the date when the Court issues an Order or from the date when the Plaintiff received this Order in mail?”
- “Can the U.S. Court of Federal Claims dismiss Plaintiff’s Complaint on the basis that the Plaintiff failed to pay a filing fee within 10 days from the issuance of the Order if the Plaintiff filed a statement within seven days from the receiving of the Order in mail explaining that the Plaintiff didn’t have money to pay a filing fee at that moment, and the Plaintiff asked the Court to wait until I receive my salary?”
One new brief in opposition was filed with the Supreme Court in Phazzer Electronics, Inc. v. Taser International, Inc. In its brief in opposition of the petition, Taser contends that
[p]etitioner omits significant, relevant procedural history necessary to properly evaluate this Court’s jurisdiction and the propriety of granting the Petition. For this reason alone, the Court should deny the Petition pursuant to Sup. Ct. R. 14.4.
Taser continues on to explain that “Phazzer’s June 8, 2020 Petition, filed nearly 10 months after the Federal Circuit’s August 23, 2019 denial of panel rehearing in appeal No. 18-1914, is jurisdictionally barred as untimely” and that the Petition is also “a misguided collateral attack on TASER’s October 26, 2018 fully-affirmed patent infringement judgment (SAppx. 16a), and as such is barred by well-established principles of res judicata.”
One new reply brief was submitted to the Supreme Court in Sanofi-Aventis Deutschland GMBH v. Mylan Pharmaceuticals Inc. In its reply brief, Sanofi-Aventis contends that “Mylan avoids [the] important and recurring question” in this case, which is “whether and when an intervening change of law on a separation-of-powers issue should apply in pending cases, regardless of forfeiture.” Sanofi-Aventis argues that
Mylan does not dispute that forfeiture may be excused when there is an intervening change of law, nor can Mylan credibly contend that Arthrex—which ‘invalidated Congress’s framework for appointing’ APJs —was not an important change. Instead, Mylan contends  that any forfeiture should not be excused because the Appointments Clause argument was supposedly ‘foreseeable.’ But putting aside whether an unforeseeable legal argument would be an additional reason to excuse forfeiture, foreseeability is not the test for whether a decision marks a change of law. Indeed, Mylan’s injection of an ‘unforeseeability’ requirement into the change-of-law analysis only underscores the need for this Court’s guidance. . . . In the end, the Federal Circuit’s approach here trivializes a significant constitutional problem: it deems APJs’ appointments unconstitutional one day, yet enforces their ultra vires actions the next. Certiorari is warranted.
Waivers of Right to Respond
In Customedia Technologies, LLC v. Dish Network Corp., Dish Network filed a waiver of its right to respond to the petition, which raised a question related to the Appointments Clause.