This post summarizes recent activity at the Supreme Court in cases decided by the Federal Circuit.
- Two new reply briefs were filed with the Court, the first by Comcast in Comcast Cable Communications, LLC v. Rovi Guides, Inc., and the second by Duke in Duke University v. Biomarin Pharmaceutical Inc.
- The Court denied a total of three petitions this week: (1) Robles v. Wilkie, (2) Medina v. Federal Aviation Administration, and (3) B.E. Technology, L.L.C. v. Facebook, Inc.
Here are the details.
There is no new activity to report.
Two new reply briefs were submitted to the Supreme Court.
In Comcast Cable Communications, LLC v. Rovi Guides, Inc., Comcast filed its reply arguing that the Court “should hold this petition pending its decision in Arthrex.” Additionally, Comcast contends that
even if the Court holds that PTAB judges’ appointments violate the Appointments Clause and that Arthrex itself is entitled to new hearing, the proper disposition of this petition is to grant certiorari, vacate the Federal Circuit’s order remanding this case to the PTAB for new hearing, and remand to the Federal Circuit with appropriate instructions.
In Duke University v. Biomarin Pharmaceutical Inc., Duke submitted its reply with the Court asserting that the questions presented in the Arthrex implicate its petition in this case and that its petition
raises additional recurrent questions of exceptional importance that should be considered alongside this Court’s review of Arthrex, or at least held for further consideration until after Arthrex is decided. The Federal Circuit’s holding in Arthrex was an intervening change in law while Duke’s appeal was still pending. Nevertheless, the court refused to apply it here. Respondent urges this Court to excuse the Federal Circuit’s misapplication of forfeiture because, according to Respondent, Duke should have predicted the change before it happened. But Respondent is incorrect in both its premises and conclusion— clairvoyance has never been a prerequisite for invoking a constitutional protection, and the Federal Circuit rejected the same Appointments Clause challenge at least twice before deciding Arthrex. . . . [Additionally,] [b]y requiring Duke to prove a negative and show that its commercial success and industry praise were not due to all other imaginable factors, the Board’s decision—summarily affirmed by the Federal Circuit—treats the fourth Graham factor as a meaningless platitude. This Court’s intervention is needed to restore objective indicia to its proper place in the obviousness inquiry.
The Supreme Court denied the following three petitions this week: