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, though, four new reply briefs and two waivers of right to respond were filed. Here are the details.
There is no new activity to report.
This past week, petitioners filed four new reply briefs in support of their petitions.
In PersonalWeb Technologies, LLC v. Patreon, Inc, a case which challenges the Federal Circuit’s application of the Supreme Court’s holding in Kessler v. Eldred with regard to the preclusion doctrine, PersonalWeb Technologies filed its reply brief. PersonalWeb Technologies characterizes the Federal Circuit’s application of Kessler as “a patent-specific rule that precludes parties from litigating claims based on the outcome of prior litigation.” As a result, PersonalWeb Technologies argues, the doctrine squarely fits within the definition of a novel preclusion doctrine, and according to PersonalWeb Technologies the Supreme Court has indicated “not . . . to devise novel preclusion doctrines that stray beyond the traditional bounds of claim and issue preclusion.” Moreover, PersonalWeb Technologies argues that recent litigation illustrates “that the Federal Circuit broke new ground in a major way and that its modern reimagining of Kessler has run amok.” Accordingly, PersonalWeb Technologies asserts that the Federal Circuit’s application of the Kessler doctrine warrants review from the Supreme Court.
In VoIP-Pal.com, Inc. v. Apple, Inc., a case that presents questions regarding patent eligibility, VoIP-Pal.com filed its reply brief arguing that this case is the proper vehicle for the Court to resolve the “bitter divide within the Federal Circuit” regarding “significant issues of patent law.” Specifically, VoIP-Pal.com contends that the “district court plainly conflated the §101 eligibility inquiry with the §112 patentability inquiry in the same way that deeply troubled the American Axle dissenters.” Moreover, says VoIP-Pal.com, “[t]he Federal Circuit’s endorsement of §101 subsuming the inquiries under other sections of the Patent Act underscores the inconsistent and chaotic state of its §101 jurisprudence.” VoIP-Pal.com also argues that the petition should be granted because “the Federal Circuit cannot restore certainty to this area of the law without this Court’s guidance.” VoIP-Pal.com asserts that “the outcome of [the] issues in American Axle will necessarily impact this case’s outcome” and therefore, “the Court should hold this case until the American Axle petition is resolved” or grant the petition.
In another case raising questions relating to patent eligibility, another petitioner filed its reply brief. In iLife Technologies, Inc. v. Nintendo of America, Inc., iLife Technologies similarly seeks “a hold pending disposition of the petition filed in American Axle (No. 20-891), which presents the same questions concerning the substantive and procedural application of 35 U.S.C. § 101.” iLife Technologies believes that “any interpretation of § 101 by this Court in American Axle will retroactively control, and likely require reconsideration of, the eligibility of iLife’s patent.”
Waivers of Right to Respond
In two cases, respondents filed waivers of right to respond to petitions.
In Bobcar Media, LLC v. Aardvark Event Logistics, Inc., raising questions related to the Federal Circuit’s use of Rule 36 summary affirmances, Aardvark Event Logistics filed a waiver of right to respond.