Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. With respect to the Supreme Court’s October 2021 term, the Court still has not granted any petitions in cases decided by the Federal Circuit. Since our last update, moreover, no new petitions have been filed with the Court. As for pending petitions, however, five amicus briefs and a waiver of right to respond were filed in a patent case asking whether the Federal Circuit holds jurisdiction over appeals or petitions challenging denials of petitions for inter partes review. Finally, an amicus brief was filed in another patent case also addressing the appellate jurisdiction of the Federal Circuit over appeals from denials of petitions for inter partes review. Here are the details.
There is no new activity to report.
New amicus briefs were filed in two cases.
In Apple Inc. v. Optis Cellular Technology, LLC, a case asking the Court to consider whether the Federal Circuit may review, by appeal or mandamus, a decision of the U.S. Patent & Trademark Office denying a petition for inter partes review of a patent, five amicus briefs were filed:
- Brief amicus curiae of Jeremy C. Doerre in support of neither party.
- Brief amicus curiae of Computer and Communications Industry Association in support of Apple, Inc.
- Brief amici curiae of Leading Innovators in support of Apple, Inc.
- Brief amicus curiae of ACT | The App Association in support of Apple, Inc.
- Brief amicus curiae of Roku, Inc. in support of Apple, Inc.
In Mylan Laboratories Ltd. v. Janssen Pharmaceutica, N.V., a patent attorney filed an amicus brief in support of neither party. The petition raised two questions related to the ability to appeal decisions not to institute inter partes reviews. The amicus brief argues that “the Petition’s interpretation of 28 U.S.C. § 1295 is contrary to an established judicial interpretation presumptively adopted by Congress.” Moreover, the brief emphasizes that the petitioner’s desired interpretation is problematic because it would permit the U.S. Patent and Trademark Office Director’s regulations to expand the Federal Circuit’s jurisdiction.