Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit.
- The Supreme Court received four new petitions for writ of certiorari.
- Three new response briefs were filed with the Court. Two in Iancu v. Fall Line Patents, LLC and one in Ericsson Inc. v. TCL Communication Technology Holdings Limited.
- Two new amicus briefs were filed with the Court in Sellers v. Secretary of Veterans Affairs, the first by the National Law School Veterans Clinic Consortium and the second by the Military-Veterans Advocacy Inc.
- One letter to Justice Barrett was filed with the Court by counsel for Sasso in Warsaw Orthopedic, Inc. v. Sasso, notifying Justice Barrett of a potential conflict of interest.
- Two waivers of right to respond were filed with the Court.
- Lastly, the Court denied the petitions in two cases: (1) Argentum Pharmaceuticals LLC v. Novartis Pharmaceuticals Corporation and (2) Wynkoop v. Department of Defense.
Here are the details.
There is no new activity to report.
The Supreme Court received four new petitions for writ of certiorari.
In NetScout Systems, Inc. v. Packet Intelligence LLC, NetScout asked the Court to review the following three questions:
- “Whether a finding of willful infringement justifying treble damages may be based solely on the defendant’s conduct following the filing of the suit.”
- “If the defendant’s post-filing conduct can provide a basis for willful infringement, whether such a finding is adequately supported by evidence that (1) high-level executives did not read the asserted patents in detail but instead relied upon conversations with counsel to confirm good-faith and reasonable defenses; and (2) the defendant continued to sell the accused products while suit was pending, in reliance on its good-faith defenses. “
- “Whether a purported solution to a technological problem is necessarily eligible for patent protection and cannot be directed to an abstract idea.”
In Warsaw Orthopedic, Inc. v. Sasso, Warsaw asked the Court to review the following question:
Whether a federal court with exclusive jurisdiction over a claim may abstain in favor of a state court with no jurisdiction over that claim.
In Corcamore, LLC v. SFM, LLC, Corcamore asked the Court to review the following two questions:
- “Whether this Court’s Lexmark test is the sole determinant of the statutory power of the Trademark Trial and Appeal Board to adjudicate a § 1064 to cancel a trademark registration, or can the Federal Circuit’s make its ‘real interest’ and ‘reasonable belief’ approach an optional, more lenient to plead for the statutory remedy. Whether the Federal Circuit panel erred in its decision (i) that does not adhere to this Court’s Lexmark precedent, and (ii) that also conflicts with the Fourth Circuit’s decision on the interpretation and application of the same statutory standard that applies to pleading for the remedy created in Section § 1064 of the Lanham Act.”
- “Can the Trademark Trial and Appeal Board, an Article I administrative tribunal, endow itself with ‘inherent authority,’ not conferred by rule or statute, and use that to impose a punitive sanction on a party. If the Trademark Trial and Appeal Board can impose a punitive terminating sanction, for reasons unrelated to trademark registerability, then must that administrative tribunal provide at least the same due process protections as an Article III court.”
In WPEM, LLC v. SOTI, Inc., WPEM asked the Court to review the following two questions:
- “Does a patent’s presumption of validity afforded by 35 U.S.C. §282 limit a district court’s discretion to find a case exceptional under 35 U.S.C. §285 when it is only later discovered the accused technology is prior art?”
- “Given the clear and convincing evidence standard to invalidate a patent, does a district court have the discretion to find a case exceptional under 35 U.S.C. §285 based upon asserted but unproven grounds of invalidity and unenforceability?”
Three new response briefs were filed with the Court.
[t]he court of appeals decided this case solely based on Arthrex.  If this Court reverses the court of appeals’ decision in Arthrex, it will undermine
the only basis for the court of appeals’ decision in this case. And for the reasons explained in the government’s brief in Arthrex , the Court should reverse the court of appeals’ decision, because Arthrex was wrongly decided. The Court therefore should hold this petition pending its resolution of Arthrex, and then dispose of the petition as appropriate in light of its decision in that case.
adopts petitioner’s argument section in full.  For example, Marx agrees with petitioner that, if the Court reverses in Arthrex, then the Court should vacate the judgment of the Federal Circuit in the Marx case and remand for further proceedings. The petition in the Marx case should thus be held pending the issuance of this Court’s decision in Arthrex, and then should be disposed of as appropriate in light of that decision.
Lastly, in Ericsson Inc. v. TCL Communication Technology Holdings Limited, TCL filed its response brief with the Court arguing that
[t]he Petition fails to properly account for the critical fact that the district court did not merely deny TCL’s motion for summary judgment—it did so in a way that effectively granted summary judgment in favor of Ericsson on a purely legal issue. This distinction has a significant impact on the circuit court precedent relevant here, all of which Ericsson ignores. Indeed, there is no circuit split when one accounts for the fact that the district court’s denial of summary judgment amounted to an effective grant of summary judgment for the nonmovant on a purely legal issue. The law of every circuit permits TCL’s appeal. Thus, this case is not a good candidate for certiorari
Two new amicus briefs were filed with the Court in Sellers v. Secretary of Veterans Affairs.
The first amicus brief was filed by the National Law School Veterans Clinic Consortium (NLSVCC) in support of the petition. In its brief, the NLSVCC contends that
Veterans commonly bear the burden of mental health issues after military service. They also commonly struggle to recognize, describe, and report their mental health symptoms. Among veterans, a cloud of stigma surrounds mental illness and results in many veterans suffering in silence. For a veteran carrying the weight of daily mental stress, taking the first step to ask VA for help can seem like standing at the base of an unclimbable mountain. Fortunately, VA adjudicators are trained to assist the veteran reach the summit—the most accurate and appropriate compensation and care for the burdens the veteran is carrying— known as a claim’s “optimum.” Congress designed the VA system to be non-adversarial and veteran-friendly, but it has grown to be complex and intimidating. A veteran needs VA’s expert helping hand from the beginning to have any hope of properly navigating the benefits system and obtaining optimal compensation and care.
The second amicus brief was filed by the Military-Veterans Advocacy Inc. (MVA) in support of the petition. In its brief, the MVA argues
[t]he Federal Circuit’s holding that a disability benefits claim must “identify the sickness, disease, or injury for which benefits are sought,”  injects serious problems into an administrative regime already riddled with them. The VA-benefits system is complicated, slow, and inaccurate, and most veterans must navigate it without the benefit of legal counsel. It is little wonder that many veterans either give up or die before they obtain the benefits to which their dutiful service has entitled them. The Federal Circuit’s limitation on claim scope makes these problems worse. The rule’s consequences are particularly cruel for veterans suffering from psychiatric disabilities, which often involve as symptoms an inability or unwillingness to accurately or adequately communicate about the disease itself. And this illogical and unjust rule is not compelled by the relevant statutes or regulations—far from it. The court of appeals’ new rule enjoys no provenance in statute, in regulation, in judicial precedent, or in past agency practice. This Court should grant the petition for certiorari.
Letters to the Court
In Warsaw Orthopedic, Inc. v. Sasso, counsel for Sasso filed a letter with the Court to Justice Amy Coney Barrett, notifying Justice Barrett that, for conflicts purposes, her “husband’s law firm represented Petitioners in the underlying state court proceedings at trial in the Marshall County Circuit Court, and on appeal to the Indiana Court of Appeals and Indiana Supreme Court.”
Waivers of Right to Respond
Two waivers of right to respond were filed with the Court. The first waiver was filed by Packet in NetScout Systems, Inc. v. Packet Intelligence LLC, and the second wavier by Sasso in Warsaw Orthopedic, Inc. v. Sasso.
Lastly, the Court denied the petitions in two cases: (1) Argentum Pharmaceuticals LLC v. Novartis Pharmaceuticals Corporation and (2) Wynkoop v. Department of Defense.