Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit.
- The Court received three new petitions for writ of certiorari.
- Three new response briefs were filed with the Court in the following cases: Merit Medical Systems, Inc. v. Khan, Maine Community Health Options v. United States, and Sandoz Inc. v. Immunex Corp.
- Two new response briefs were filed with the Court in American Axle & Manufacturing, Inc. v. Neapco Holdings LLC and Khan v. Merit Medical Systems Inc.
- The Court received one new waiver of right to respond from the Secretary of Veterans Affairs in Blanton v. Secretary of Veterans Affairs.
Here are the details.
There is no new activity to report.
The Court received three new petitions for writ of certiorari.
In United States v. Maine Community Health Options, the government asked the Court to review the following question:
Whether the court of appeals erred in concluding that Congress intended to afford insurers an implied money-damages remedy as compensation for CSR payments that were not made because Congress declined to appropriate funds to pay them and that could generally be offset under other ACA provisions that insurers invoked to obtain a recovery.
In Roadie, Inc. v. Baggage Airline Guest Services, Inc., Roadie asked the Court to review the following three questions:
- “Whether District Court judges should be required to consider the weakness of an infringement ii claim, after ruling in favor of the defendant on invalidity, where, as here, (i) the issue of noninfringement was fully briefed, (ii) claim construction, of the only disputed term, was performed by the judge in ruling on invalidity, and (iii) plaintiff misrepresented to the court both the need for claim construction, and the nature of the alleged infringement; and concomitantly, should Circuit Courts of Appeals give more scrutiny to District Court judges who use discretion without considering all relevant factors.”
- “Whether the district court failed to fairly consider all relevant factors bearing on the issue of exceptionality.”
- “Whether violating Fed. R. C. P. 7, in an apparent effort to hide the improper motive for bringing and sustaining a weak patent infringement case, should lead to a per se rule that a case is exceptional; alternatively, whether such a violation should have been considered as one of the factors in determining exceptionality.”
In NetSoc, LLC v. Match Group, LLC, NetSoc asked the Court to review the following three questions:
- “Is the addition of a network computer implemented social network, with a novel and unconventional rating system, to a method of organizing human activity per se unpatentable as directed to an abstract idea?”
- “Is a network computer implemented social network an application of an abstract concept, namely the organizing and rating of human activity, to a new and useful end, therefore remaining eligible for patent protection?”
- “In 2003, did the creation of a network computer implemented social network with a novel and unconventional rating system transform it into an improved social network that is something concrete and tangible?”
The Court received three new response briefs in the following cases.
Under 35 U.S.C. § 285, an award of attorney fees is permitted only “in exceptional cases.” 35 U.S.C. § 285. Here, the district court found that the case is not “exceptional.” Moreover, the district court found that the motion for attorney fees under § 285 filed by CrossPetitioner Merit Medical Systems, Inc. (“Merit”) was untimely, as it was not filed until three months after the entry of judgment. Merit’s Cross-Petition does not challenge these findings, each of which—alone or in combination—bars an award of § 285 attorney fees as a matter of law. Accordingly, Merit’s Cross-Petition should be denied.
Applying this Court’s precedents, the court of appeals correctly determined that, in calculating the damages that petitioners may recover in their Tucker Act suits predicated on the cessation of CSR payments, the trial court must deduct the increased premium tax credits that petitioners received “as a direct result of the government’s nonpayment of [CSR payments].”  Petitioners resist that conclusion, contending  that they should be allowed to recover the full amount of CSR payments not made, without taking into account their undisputed receipt of the increased premium tax credits. The court of appeals correctly rejected that contention, and its decision does not conflict with any decision of this Court or any other court of appeals. Further review is not warranted.
The court of appeals applied the legal standard that Sandoz asked it to apply, and it decided—based on a holistic assessment of the license agreement at the center of this case—that Roche, not Immunex, owns the Roche patents. The Federal Circuit’s factbound assessment was correct, but it would not warrant this Court’s review in any event. And even if the decision below presented a genuinely significant question of federal law, this case would be a poor vehicle for resolving it, both because threshold issues would complicate the Court’s review, and because the district court rejected Sandoz’s double-patenting defense on multiple independent grounds, making the factbound question Sandoz tries to present largely academic, even in this particular case. The petition should be denied.
Two new reply briefs were filed with the Court in the following cases.
In American Axle & Manufacturing, Inc. v. Neapco Holdings LLC, American Axle filed its reply brief arguing
The Federal Circuit’s application of this Court’s two-step patent-eligibility framework has taken it down the wrong path, deepening the “uncertainty” and “confusion created by this Court’s recent Section 101 precedents.”  With the Federal Circuit evenly divided, only this Court can provide the needed course correction. The Court should do so by granting certiorari and holding that a patent claim is “directed to” a law of nature within the meaning of step 1 of the Court’s framework only if it implicates the concern that justified grafting that judge-made, atextual framework onto the Patent Act in the first place: the “concern that patent law not inhibit further discovery by improperly tying up the future use of laws of nature.”
Merit Medical Systems Inc.’s (“Merit”) brief in opposition (“Opp.”) does not dispute that there is an acknowledged circuit split on the Question Presented. This split has existed since 2003, and the Seventh Circuit (now joined by the Federal Circuit in this case) has shown no signs of retreating from its atextual interpretation of Federal Rule of Civil Procedure 11(c)(2). Indeed, the Seventh Circuit recently refused a request to reconsider whether its “substantial compliance” interpretation of Rule 11(c)(2) should be overruled in view of its irreconcilable inconsistency with the text of the Rule. In sum, the Seventh Circuit has had ample opportunity to consider the better reasoned authority from other circuits, and nevertheless has declined to revisit its “substantial compliance” interpretation. Further “percolation” is unwarranted. . . . In sum, the circuit split is deeply entrenched, and Merit provides no sound reason for denying certiorari. Khan’s petition should be granted
Waivers of Right to Respond
The Court received one new waiver of right to respond from the Secretary of Veterans Affairs in Blanton v. Secretary of Veterans Affairs, a case presenting the following question: “Is the Cook standard to establish CUE in a VA decision erroneously restrictive?”