Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. Last week the Supreme Court completed its October 2020 term, with all cases from the term decided. As for the Court’s October 2021 term, currently the Court has not granted any petitions in cases decided by the Federal Circuit. That said, many petitions are still pending. And, you may recall, the Court previously requested the views of the Solicitor General in American Axle & Manufacturing, Inc. v. Neapco Holdings LLC, a patent case presenting questions related to eligibility. We are still waiting for the government’s brief in that case. And since our last update, one new petition was filed in a patent case, two respondents submitted waivers of right to respond in a patent case and a pro se case, and a petitioner filed a reply brief in a vaccine case. Here are the details.
As mentioned, last week the Supreme Court completed its October 2020 term, with all cases from the term decided. In total, the Court heard oral argument and issued opinions in three cases previously decided by the Federal Circuit:
- Google LLC v. Oracle America, Inc. (copyright)
- United States v. Arthrex, Inc. (Appointments Clause and Administrative Patent Judges)
- Minerva Surgical, Inc. v. Hologic, Inc. (patent assignor estoppel)
Since our last update, one new petition was filed. In the case, VoIP-Pal.Com, Inc. v. Apple Inc., the petitioner asked the Court to review the following three questions, with the first two tracking the questions presented in American Axle & Manufacturing, Inc. v. Neapco Holdings LLC:
- “What is the appropriate standard for determining whether a patent claim is ‘directed to’ a patent-ineligible concept under step one of the Court’s two-step framework for determining whether an invention is eligible for patenting under 35 U.S.C. §101?”
- “Is patent eligibility (at each step of the Court’s two-step framework) a question of law for the court based on the scope of the claims or a question of fact for the jury based on the state of art at the time of the patent?”
- “Is it improper to apply 35 U.S.C. §112 considerations to determine whether a patent claims eligible subject matter under 35 U.S.C. §101?”
Waivers of Right to Respond
The respondents in two separate cases submitted waivers of right to respond to petitions:
- In Ultratec, Inc. v. CaptionCall, LLC, a patent case, CaptionCall submitted a waiver of right to respond.
- In Robinson v. McDonough, a pro se veterans case, the government submitted its waiver of right to respond.
In Dupuch-Carron v. Secretary of Health and Human Services, a vaccine case, the petitioner filed his reply brief supporting his petition. The case presents questions relating to the interpretation of a provision of the National Childhood Vaccine Injury Act. Dupuch-Carron argues that “person” under the provision, which “requires that a ‘person’ receive a covered vaccine outside of the United States,” “applies only to the person who received the vaccine.” He further argues that “[m]any parents would say that their child ‘returned’ to a country that his or her mother visited while pregnant.” The petitioner also argues that the provision “cannot be reasonably understood to require that a person who receives a covered vaccine outside of the United States be a resident of the United States in order to pursue an NCVIA claim.” Dupuch-Carron also contends that “[t]he presumption against waivers of sovereign immunity does not apply . . . because it is an unequivocal waiver of sovereign immunity.” Lastly, he claims that review is necessary because “the court of appeals’ decision is an egregious example of judicial legislation.”