Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today’s report highlights:

  • an article highlighting how the Supreme Court yesterday denied Apple’s petition for writ of certiorari in Apple Inc. v. Qualcomm Inc.;
  • another article discussing how “two cases signal that the Federal Circuit and district courts are moving toward explicitly recognizing that parties to a mandatory arbitration clause can bargain away the right to file for inter partes review at the Patent Trial and Appeal Board”; and
  • a blog post addressing how a flip in a recent Federal Circuit decision “appears to be the consequence of a change in panel composition.”

Blake Brittain published an article for Reuters highlighting how, in Apple Inc. v. Qualcomm Inc., the Supreme Court “declined to hear Apple Inc’s bid to revive an effort to cancel two Qualcomm Inc smartphone patents despite the global settlement of the underlying dispute between the two tech giants.” Brittain explained how the Federal Circuit “dismissed Apple’s appeal last year based on” the parties’ original settlement. According to Brittain, “[t]he Federal Circuit rejected Apple’s contention that its royalty payments and risk of being sued again justified hearing the case on the merits.” After Apple filed a petition for writ of certiorari, Brittain emphasized how “Qualcomm asked the justices to reject the appeal, arguing Apple had not shown any concrete injury that would give it proper legal standing.” Moreover, Brittain noted that “President Joe Biden’s administration urged the Supreme Court to reject the appeal in a brief in May.”

Peter Brody, Samuel Brenner, and Ryan Brunner co-authored an article for Law360 discussing how the Federal Circuit’s decisions in In re: MaxPower Semiconductor Inc. and Nippon Shinyaku Co. Ltd. v. Sarepta Therapeutics Inc. “indicate that the Federal Circuit would likely enforce a mandatory arbitration clause . . . against a patent challenger and bar the parties from resorting to the PTAB, even if the court would not restrict the PTAB’s authority.” The authors emphasized that, “[i]n light of Nippon Shinyaku, potential patent challengers may want to push for arbitration clauses that explicitly provide for IPRs and other post-grant review.” Alternatively, the authors noted that “if an arbitration clause is already in place with no exceptions, a patent challenger may wish to rush to the PTAB in hopes of instituting review before a district court can enjoin them — as in MaxPower.”

Chris Holman wrote a blog post for PatentlyO addressing how, in Novartis Pharmaceuticals Corp. v. Accord Healthcare, Inc., “a petition for rehearing by the Federal Circuit [led] to a flipped decision that appears to be the consequence of a change in panel composition.” Holman highlighted how, “[i]n the original decision, authored by Judge O’Malley and decided January 3, a divided panel upheld a district court’s determination that the patent claims at issue were not invalid for failure to satisfy the written description requirement.” Holman noted, however, that “the composition of the [Federal Circuit] panel rehearing the case was altered by the replacement of Judge O’Malley (who retired in March) with Judge Hughes.” According to Holman, the modified panel “flipped the result of the earlier decision, this time reversing the district court.” Holman also noted that “[t]he second decision was authored by Judge Moore, the dissent in the original decision.”