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. As for pending petitions, since our last update two new petitions were filed: one in a patent case presenting questions regarding the Appointments Clause and one in a pro se patent case presenting a question concerning patent eligibility. In addition, two amicus briefs were filed in the same case in support of the petitioner, who raised questions concerning inter partes review. Moreover, two briefs in opposition were filed in patent cases raising questions related to the Appointments Clause. Finally, the government filed a supplemental brief in a government contracts case. Here are the details.
There is no new activity to report.
Two new petitions were filed this week.
- “Whether this Court should vacate the judgment below in view of its recent decision in United States v. Arthrex, Inc., 141 S. Ct. 1970 (2021), and remand so that the United States Court of Appeals for the Federal Circuit may in turn order the Acting Director to decide whether to rehear the petition filed by Chevron Oronite Company LLC.”
- “Petitioner Infineum’s Appointments Clause challenge was raised with respect to a November 6, 2019 final written decision issued after the Federal Circuit’s Arthrex, Inc. v. Smith & Nephew, Inc., 941 F.3d 1320 (Fed. Cir. 2019), opinion but before the issuance of the mandate pursuant to Federal Rule of Appellate Procedure 41 and before this Court’s decision in United States v. Arthrex, Inc., 141 S. Ct. 1970 (2021). To the extent that this Court’s decision in United States v. Arthrex did not foreclose the Federal Circuit’s conclusion that the remedy ordered by Arthrex v. Smith & Nephew cured the Appointments Clause violation, whether the panel decision was final and effective on the date of that decision such that the Appointments Clause violation was cured prior to the mandate being issued in that case.”
- “Whether computer-based process improvement patent applications for inventions by Citizen Inventors–characterized by narrow and well-defined practical solutions to clearly identified actual/existing problems which do not preempt any future inventions–[as a matter of law should] be deemed abstract in [a] Alice/Mayo analysis for patent eligibility.”
The Association for Accessible Medicines (AAM) submitted an amicus brief in support of the petitioner in Mylan Laboratories Ltd. v. Janssen Pharmaceutica, N.V., arguing that inter partes review benefits patients who rely on generic and biosimilar medications. AAM contends that, because inter partes review “root[s] out those invalid and noninnovative drug patents,” a benefit of inter partes review is that patients are granted access to safe and less expensive medications. Moreover, AAM argues that the IPR system has been weakened by a series of rules instituted by the Patent Trial and Appeal Board (PTAB). Specifically, AAM asserts that the NHK-Fintiv rule exceeds the PTAB’s authority. According to AAM, this rule effectively “rewards the patent holder for obtaining numerous invalid patents.” AAM therefore asks the Court to grant the petition.
In the same case, Intel Corporation filed an amicus brief presenting a similar argument. Intel argues that the NHK–Fintiv rule frustrates Congress’s purpose in creating inter partes review. Furthermore, Intel contends that the rule “encourages litigants to split validity issues between their IPR petitions and district court proceedings to maximize the chance of institution, undermining the IPR system’s error-correction function.” In addition, Intel states that the rule promotes forum shopping, and according to Intel, this in turn “erod[es] [the] efficacy of judicial review in the patent system.”
In Hirshfeld v. Implicit, LLC, which raises questions related to the constitutionality of administrative patent judges under the Appointments Clause, Implicit filed its response in opposition to the petition. In its brief, Implicit argues that the Supreme Court’s decision in Arthrex should serve as guidance in this case. According to Implicit, this case “should similarly benefit from vacatur and remand to the Federal Circuit” in order for the case to be reviewed by a constitutionally appointed principal officer.
Implicit also filed a brief in opposition in the case Sonos, Inc. v. Implicit, LLC, which similarly raises questions related to the Appointments Clause. Implicit presented the same argument that the Supreme Court’s recent decision in Arthrex should govern this case.
In Oracle America, Inc. v. United States, a case that asks the Court to review questions relating to bid protests, the United States filed a supplemental brief. According to the United States, “[t]he cancellation of the JEDI Cloud solicitation has rendered this case moot.” The United States therefore argues that “the lower court’s decision does not warrant further review” and the petition should be denied.