Petitions / Supreme Court Activity

Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit.

Here are the details.

Granted Cases

The Court received a response brief from Hologic in Minerva Surgical, Inc. v. Hologic, Inc., a case that has been granted certiorari. In its brief, Hologic contends

Eliminating assignor estoppel would require overriding both Congress and this Court’s own precedent. Congress cemented assignor estoppel in the patent laws in 1952 by reenacting language this Court had construed to incorporate the doctrine, consistent with a universal lower-court consensus. Congress aside, Westinghouse authoritatively holds that the patent laws incorporate assignor estoppel. Notably, not a single amicus meaningfully argues for eliminating the doctrine entirely. Minerva offers scant support for ripping away layer upon layer of settled law. . . . Nor should this Court narrow assignor estoppel’s scope. Minerva and several amici offer a menu of “options” to amend the doctrine. [] But selecting among competing policy proposals is a project better suited for Congress, especially when the proposals on the table are all riddled with doctrinal and practical problems. American courts have long recognized the value of assignor estoppel in promoting innovation, facilitating patent sales, and keeping inventors honest. For decades, millions of patents have been sold on the assumption that the doctrine applies. Minerva seeks to unsettle that consensus, those reliance interests, and any hope of clear assignment rules for years to come. This Court should decline its invitation.

Petition Cases

New Petitions

The Court received two new petitions for writ of certiorari.

In Sowinski v. California Air Resources Board, Sowinski asked the Court to review the following question:

Whether the Federal Circuit erred in creating and applying a patent-specific preclusion doctrine that bars new issues and new claims that would survive the ‘uniform’ preclusion rules applied by this Court and every other circuit.

In Merit Medical Systems, Inc. v. Khan, Merit asked the Court to review the following question:

If this Court determines in Case No. 20-773 that the Federal Circuit erred in affirming the award of attorney fees as sanctions under Rule 11, should this Court also vacate the Federal Circuit’s affirmance of the denial of the motion for attorney fees under Section 285 given the district court’s reasons for denying that motion?

New Responses

One new brief in opposition was filed with the Court in response to the petition in Khan v. Merit Medical Systems Inc. In its response brief, Merit contends

[t]his Court should deny the Khans’ petition for at least four reasons: First, this case is a poor vehicle for addressing the question presented by the Khans because they forfeited the argument they now present for review. . . . Second, this case is also a poor vehicle because if there was error below, it was harmless error. . . . Because the Khans did not stop their misconduct in spite of all of these events, serving the motion prior to filing it would have had no effect. Any error below was harmless. Third, this case is a poor vehicle because the Khans’ misconduct will give rise to liability for attorney fees one way or another. . . . Finally, the Khans’ petition should be denied because the circuit split is neither as deep, as clear, nor as settled as they allege. . . . In this case, the Khans proceeded despite multiple warnings from the court. Given the true state of the law in the circuits and the problems this case presents as a vehicle for addressing the Seventh Circuit’s current rule, there is wisdom in allowing further percolation on these matters. The Khans’ petition should be denied.

Amicus Briefs

Five new amicus briefs were filed with Court.

In Maine Community Health Options v. United States, three amicus briefs were filed with the Court by the following amici:

  • Anthem, Inc. et al. filed its brief in support of Maine Community Health Options.
  • The Association for Community Affiliated Plans filed its brief in support of Maine Community Health Options.
  • The Chamber of Commerce of the United States of America filed its brief in support of Maine Community Health Options.

In Sellers v. Secretary of Veterans Affairs, two amicus briefs were filed with the Court by the following amici:

  • The National Organization of Veterans’ Advocates, Inc. filed its brief in support of Sellers.
  • The National Veterans Legal Services Program filed its brief in support of Sellers.

Denied Petitions

Lastly, the Court denied the petition in Simmons v. Secretary of Veterans Affairs, which raised the followed question: “Must a court, when taking due account of the rule of prejudicial error on review of agency action, comport with Chenery?”