Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. The Court recently granted the motion of the Solicitor General leave to participate in oral argument as amicus curiae in Amgen Inc. v. Sanofi, Aventisub LLC, the pending patent case addressing the enablement patentability requirement. With respect to petitions, two new petitions were filed with the Court, one in a pro se case and another in a Merit Systems Protection Board case; the government filed its brief in opposition in a trade case; one amicus brief was filed in a trademark case and three amicus briefs were filed in a patent case (including, interestingly, an amicus brief on behalf of retired federal appellate judges); and the Court denied six petitions in various patent, veterans, and pro se cases. Here are the details.
The Court granted the motion of the Solicitor General for leave to participate in oral argument as amicus curiae in Amgen Inc. v. Sanofi, Aventisub LLC, a patent case raising questions related to the enablement patentability requirement.
In Faris v. Department of the Air Force, a pro se petitioner asked the Court to review six questions.
In Delgado v. Department of Justice, the petitioner asked the Court to review the following questions:
- “Whether the Federal government can breach a contract without justification and subsequently submit allegedly false documentation, evidence, and affidavits to conceal the malfeasance.”
- “What time frame must be surpassed by the Federal government in its alleged failure to comply with the contents of a legally binding settlement agreement to constitute a breach of contract?”
- “Whether the Federal government (1st party) can be held liable or sanctioned up to the amount of losses incurred and/or waived by the second party prior to the alleged breach by the Federal government.”
- “Whether the Federal government can avoid investigating it’s agents and/or employees who have allegedly violated the United States Code (U.S.C.) statutes pertaining to perjury, 18 U.S.C. § 1621 and 18 U.S.C. § 1001, Official False Statements.”
- “Whether the Federal government is permitted to allegedly violate the Freedom of Information Act (FOIA) 5 U.S.C. § 552 in an attempt to conceal violations of Perjury, 18 U.S.C. § 1621, and 18 U.S.C. § 1001, False Official Statements or other misconduct by its employees.”
Brief in Opposition
- “Did the Federal Circuit err in holding that the Secretary’s ‘final agency action’ which determined that imports of steel ‘threaten to impair the national security’ is not subject to arbitrary and capricious review as prescribed by the APA?”
- “Did the Federal Circuit correctly interpret the explicitly Congressional requirement of Section 232 that the Secretary must find that imports ‘threaten to impair’ national security?”
In its brief in opposition to the petition, the government argues that, as to the first question presented, the Secretary’s report “is not subject to APA review because the report is not final agency action.” According to the government, moreover, “even if the report could be reviewed for compliance with the Constitution and federal statutes, it could not be reviewed for arbitrariness.” The government maintains that “decisions about national security are ‘confided by our Constitution” to the political branches.’” Anyway, it contends “the Secretarial finding that petitioners challenge was not arbitrary and capricious.” As to the second question presented, the government argues that, “[b]ecause the Secretary’s report is not final agency action and is not subject to arbitrary-and-capricious review in the first place, this case presents no occasion for reaching any subsidiary questions of statutory interpretation.”
One amicus brief was filed in Vidal v. Elster, a trademark case concerning a refusal to register a mark because it “[c]onsists of or comprises a name . . . identifying a particular living individual” without his written consent. 15 U.S.C. 1052(c).
- Matthew Handal filed an amicus brief in support of the petitioner. Four of Handal’s marks have been refused registration under Section 2(c) of the Lanham Act, and the refusals have been appealed to the Trademark Trial and Appeal Board. He argues that “Section 2(a) would have been a sufficient ground to refuse the application in question.” Handal maintains that “it was undisputed that Section 2(a) was factually applicable and that such refusal was constitutional.” Accordingly, he argues, “[i]t was unnecessary [for the Federal Circuit] to reach the issue of the constitutionality of Section 2(c) as applied to marks that contain speech critical of government officials or public figures.”
Three amicus brief were filed in Novartis Pharmaceuticals Corporation v. HEC Pharm Co., Ltd., a patent case raising questions related to appellate procedure and patent law’s written description requirement.
- A different group of law professors and civil procedure scholars filed an amicus brief supporting the petitioner. This group argues the Federal Circuit’s procedure of forming a new panel for rehearing is “anomalous.” Their brief contends the procedure followed in this case is “inconsistent with principles reflected in the law-of-the-circuit doctrine, which ensures uniformity in circuit law by holding that one three-judge panel must abide by prior panel decisions, absent en banc or Supreme Court rulings.” According to the group, the Federal Circuit’s procedure is “inherently one-sided: if there are no grounds for an original panel member to change his or her vote, then the appointment of a new judge can assist only the losing party.” It maintains the outcome here will “encourage more losing parties to bring the most inefficient, vexing, and unproductive type of rehearing petition: one that merely rehashes arguments the panel has already rejected.”
- A group of retired United States circuit judges (none having served on the Federal Circuit) filed an amicus brief in support of the petitioner. The group argues that “[a]llowing judges to swap out under the pretense of panel rehearing to change already-published decisions undermines public confidence in the judiciary.” They maintain “[t]he better approach . . . is to deny panel rehearing unless the remaining quorum of two agrees to it.” Further, they contend, “[t]his issue cries out for uniformity that only this Court can provide.”
- A group of intellectual property professors filed an amicus brief in support of the petitioner. These professors maintain that the Federal Circuit’s decision “ignored Supreme Court and Federal Circuit precedent to announce a new written description standard: a patent owner now must show that any claim limitation not recited in haec verba in the specification must be understood by a skilled artisan to be ‘always’ or ‘necessarily’ present.” They argue the Federal Circuit’s new rule “upsets settled expectations and discourages incentives to invent by depriving patentees the ability to limit their claims to avoid the prior art.” Additionally, the professors contend that, “[b]y failing to defer to the unrebutted fact-finding of the district court and four experts, the Federal Circuit added further unpredictability to the written description inquiry and undermined the independent authority of district courts to resolve questions of fact.”
The Supreme Court denied certiorari in six cases: