This post summarizes recent activity at the Supreme Court in cases decided by the Federal Circuit.
- The Supreme Court received three new petitions for writ of certiorari in (1) InfoBionic, Inc. v. Cardionet, LLC, (2) Lone Star Silicon Innovations, LLC v. Iancu, and (3) Kinghorn v. United States.
- Two new responses to petitions were filed with the Court, the first by the Alfred E. Mann Foundation in Cochlear Corp. v. Alfred E. Mann Foundation for Scientific Research, and the second by the government in ThermoLife International LLC v. Iancu.
- One new reply to the petition in Rovi Guides, Inc. v. Comcast Cable Communications, LLC was filed with the Court by Rovi.
- Three amicus briefs were filed in Idenix Pharmaceuticals LLC v. Gilead Sciences, Inc., all in support of Idenix.
- Lastly, the Supreme Court denied the petitions for writ of certiorari in three cases: (1) IYM Technologies LLC v. RPX Corp., (2) Duke University v. Biomarin Pharmaceutical Inc., and (3) Whitserve LLC v. Donuts Inc.
Here are the details.
There is no new activity to report.
The Supreme Court received three new petitions for writ of certiorari.
In InfoBionic, Inc. v. Cardionet, LLC, InfoBionic asked the Court to review the following question:
“Whether the Federal Circuit has properly narrowed the scope of the abstract idea exception under 35 U.S.C. § 101.”
In Lone Star Silicon Innovations, LLC v. Iancu, Lone Star asked the Court to review the following two questions:
- “[W]hether, in inter partes review proceedings, the Board may issue a final written decision that invalidates duly issued patent claims based on a ground not asserted by the petitioner in the corresponding petition.”
- “[W]hether judicial review is available to remedy the Board’s unauthorized final decision invalidating those claims based on a ground not asserted in the petition.”
In Kinghorn v. United States, Kinghorn asked the Court to review the following question:
“What is the correct legal standard of review for determining a Motion to Intervene as of right as well as a Motion to Permissively Intervene when the United States Courts of Appeals are split on the appropriate standard of review.”
Two new briefs in response to petitions were filed with the Supreme Court.
In Cochlear Corp. v. Alfred E. Mann Foundation for Scientific Research, the Alfred E. Mann Foundation filed its brief in opposition to the petition, contending that
Petitioners ask this Court to review the one-sentence order of the court of appeals summarily affirming the judgment. The three issues raised are not presented even by the underlying order of the district court. Petitioners waived the ability to challenge on some points. On others, they do not seek to settle any broadly applicable rule of law, but instead seek fact-bound review of a distinctive record that has been carefully evaluated by two courts below. And as to all of these points, the judgment is amply supported by alternate, unchallenged legal theories and evidence, so the guidance Petitioners pursue would be advisory at best. This Court does not issue advisory opinions. Certiorari should be denied.
Petitioner contends  that the court of appeals affirmed the Board’s decision based on the court’s own factual findings, in violation of the rule announced in SEC v. Chenery Corp., 332 U.S. 194 (1947). That argument rests on a mischaracterization of the decisions issued by the Board and the court of appeals, and it presents (at most) a factbound issue that does not warrant this Court’s review. Petitioner further contends  that this Court should consider an unrelated constitutional challenge that petitioner has raised for the first time in its petition for a writ of certiorari. Petitioner forfeited that claim by failing to raise it before the Board or the court of appeals. The Court recently denied a petition for a writ of certiorari seeking to raise a materially identical constitutional challenge in similar circumstances. See Arthrex, Inc. v. Smith & Nephew, Inc., No. 19-1204 (Oct. 5, 2020). The same result is warranted here.
One new reply brief was filed with the Court in Rovi Guides, Inc. v. Comcast Cable Communications, LLC. In its reply, Rovi contends that
As Comcast admits , Rovi’s cross-petition for certiorari ‘raises remedial questions that are encompassed within the remedial question’ that this Court will decide in United States v. Arthrex, Inc., Nos. 19-1434, 19-1452, and 19-1458 (certiorari granted Oct. 13, 2020). In Arthrex, this Court granted review to decide whether administrative patent judges are improperly appointed principal officers under the Appointments Clause, and, if so, whether the Federal Circuit permissibly cured the Appointments Clause violation by severing and invalidating administrative patent judges’ tenure protections. Rovi’s cross-petition presents the same questions.  Accordingly, Rovi’s crosspetition should be held pending this Court’s disposition of Arthrex.
Three new amicus briefs were filed with the Court in Idenix Pharmaceuticals LLC v. Gilead Sciences, Inc.:
- Amgen Inc. filed an amicus brief in support of Idenix.
- A group of Intellectual Property Professors filed an amicus brief in support of Idenix.
- GlaxoSmithKline PLC. filed an amicus brief in support of Idenix.
The Supreme Court denied the following three petitions this week: