Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. For the first time during the Supreme Court’s current term, the Court granted certiorari in a case decided by the Federal Circuit, but notably it did so only to vacate the Federal Circuit’s judgment and remand the case for further consideration of an Appointments Clause challenge. As for still-pending petitions, since our last update a pro se party filed a petition. Additionally, a petitioner filed a reply in support of its petition, which raised two questions related to retroactive application of inter partes review and the Federal Circuit’s use of summary affirmances. Lastly, the Supreme Court denied two petitions: one filed by a pro se petitioner and one in a patent case raising an Appointments Clause challenge. Here are the details.
In Hirshfeld v. Implicit, LLC, the Supreme Court granted the petition, vacated the judgment, and remanded the case back to the Federal Circuit. The petition presented a question related to the constitutionality of administrative patent judges under the Appointments Clause. The Court remanded the case for further consideration in light of the Court’s recent ruling in United States v. Arthrex, Inc.
In Ultratec, Inc. v. CaptionCall, LLC, a case considering retroactive application of the inter partes review process, Ultratec filed its reply in support of review. In it, Ultratec argued that this case provides an ideal vehicle for the Court to “resolve two purely legal questions of critical importance to the patent system.” Namely, Ultratec asserted that the law concerning due process property protections deserves further consideration. Additionally, Ultratec asked for clarification regarding “whether the Federal Circuit’s use of summary affirmance in IPR appeals violates 35 U.S.C. § 144.” Ultratec also argued that it properly preserved its due process argument, “but even if not,” according to Ultratec, “waiver is inappropriate here.”
The Court denied two petitions: