Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. With respect to granted cases, there is no new activity to report since our last update. With respect to petitions, one new petition was filed with the Court in a pro se case; two parties and the government waived their right to respond in a patent case and two pro se cases; the Solicitor General filed an amicus brief expressing the views of the United States in a patent case; four amicus brief were filed in a veterans case; and the Court denied certiorari in a Merit Systems Protection Board case and two pro se cases. Here are the details.
There is no new activity to report.
In Steeves v. United States, a pro se petitioner asked the Court to review five questions.
Waiver of Right to Respond
Finjan LLC waived its right to respond in ESET, LLC v. Finjan LLC, a patent case raising questions related to claim construction.
Microsoft waived its right to respond in Wakefield v. Blackboard, a pro se case.
The government waived its right to respond in Thornton v. McDonough, a pro se case.
The Solicitor General filed an amicus brief expressing the views of the United States in Teva Pharmaceuticals USA, Inc. v. GlaxoSmithKline LLC, a case raising a question about so-called skinny labelling.
The petition presented the following question:
- “If a generic drug’s FDA-approved label carves out all of the language that the brand manufacturer has identified as covering its patented uses, can the generic manufacturer be held liable on a theory that its label still intentionally encourages infringement of those carved-out uses?”
In its brief, the government argues the Court should grant the petition. The government argues “[a] generic manufacturer’s labeling cannot provide the requisite evidence of specific intent to induce infringement in a case like this one.” If the generic manufacturer’s use of FDA-approved carved-out labeling could support a finding of intent to induce infringement, the government contends, then “generic manufacturers’ invocation of the section viii pathway [enabling manufacturers to market generic versions of a brand-name drug where the drug itself is not patented] would be substantially deterred.” Moreover, the government argues, “the inference of intent is inappropriate here.” It maintains that “[t]he carved-out labeling did not reflect petitioner’s unencumbered choice, but instead was driven by FDA regulatory requirements and GSK’s own identification of the indication that should be excised.” It contends “[t]he decision below subverts the balance struck by Congress, creates significant uncertainty for FDA and generic manufacturers, and invites gamesmanship by brand-name manufacturers.”
Four amicus brief were filed in Skaar v. McDonough, a veterans case. The petition presented following question:
- “Does the Veterans Court have statutory or inherent authority to include veterans whose individual claims are not yet exhausted in a class seeking injunctive relief, where the court has jurisdiction over a named representative’s claim?”
All of the amicus briefs support the petitioner:
- The National Law School Veterans Clinic Consortium filed an amicus brief in support of the petitioner. It argues “[c]lass-wide injunctive relief would resolve wide-spread, systemic problems” within the Department of Veterans Affairs. By limiting the members of the class to only those who have received Board decisions, it contends, “relief is limited only to those who have the means, access, and time to perfect an appeal.” The Consortium also argues that an intra-circuit split “can only be remedied by a grant of certiorari.”
- The National Organization of Veterans’ Advocates, Paralyzed Veterans of America, and Veterans of Foreign War of the United States also filed an amicus brief in support of the petitioner. The group argues two main points in its brief. First, it argues, “the elimination of veteran class appeals will cause serious hardship to the Veterans Court and those before it. ” Second, it contends, the “Federal Circuit’s effective elimination of veteran class appeals rests on fundamental misunderstandings of the Veterans Court’s statutory authority, the way class actions challenging government misconduct usually work, and this Court’s precedents.”
- Civil Procedure and Administrative Law Scholars filed an amicus brief in support of the petitioner. They argue “the class relief sought here is part of a long tradition of aggregate litigation providing efficient re-dress to those collectively wronged.” According to the group, the class the petitioner seeks “is consistent with the classes of claimants routinely certified by federal courts, including claimants who have exhausted their administrative remedies and claimants who have not.” They maintain the “exclusive jurisdictions of the Veterans Court and the Federal Circuit enhance the traditional benefits of aggregate litigation while minimizing potential abuses.”
- NCLSP, IAVA, and VVA filed an amicus brief in support of the petitioners. They argue the Federal Circuit’s decision would “severely constrict the number of veterans that can ever be eligible for class certification.” The decision, according to the group, “seizes the reins of power from the Veterans Court and grants the government carte blanche to moot important cases.”
The Court denied certiorari in the following cases:
- Delgado v. Department of Justice, (Merit Systems Protection Board)
- Faris v. Department of the Air Force (pro se case)
- McCormick v. McDonough (pro se case)