Here is an update on activity at the Supreme Court in cases decided by the Federal Circuit. With respect to granted cases, there is no new activity to report. With respect to petitions, two new petitions were filed. One comes in a patent case raising a question under the Administrative Procedure Act relating to inter partes review by the Patent Trial and Appeal Board. The other petition comes in a pro se case. The Court also received a new brief in opposition in a case concerning appellate procedure, an amicus brief in a patent case, and waivers of the right to respond in two other patent cases. In addition, the Court denied the petitions in three patent cases and one pro se case. Here are the details.
Granted Cases
There is no new activity to report.
Petition Cases
New Petitions
In Arbor Global Strategies, LLC v. Samsung Electronics Co., a patent case, Arbor Global Strategies asked the Court to review the following question:
- “Whether [5 U.S.C.] Section 554(d) prohibits the same Patent Trial and Appeal Board panel from instituting and deciding inter partes review, because institution is a prosecuting function within the meaning of the Administrative Procedure Act.”
In Taylor v. McDonough, a pro se case, Taylor asked the Court to review the following questions:
- “If the allegations occurred of obstruction of justice, fraud on the court, and evidence tampering, which led to prejudicial losses with harmful error, can the CAVC and CAFC ignore it, or should they have gotten involved, and if they can disregard it, does this lead to an absurd legal position that cheating is okay, and thus should be abandoned forthwith?”
- “Can the CAVC and CAFC replace allegations of cheating with unsuitable statements such as ‘We don’t have the jurisdiction to readjudicate the claim facts,’ especially when the . . . Justice lawyer agreed that the evidence had been switched?”
Waivers of the Right to Respond
A waiver of the right to respond was filed in ParkerVision, Inc. v. TCL Industries Holdings Co., a patent case presenting the following question:
- “Whether 35 U.S.C. § 144, which requires the Federal Circuit to issue ‘opinion[s]’ in PTAB appeals, is a reason-giving directive that prohibits the Federal Circuit’s practice, under Federal Circuit Rule 36(a), of summarily affirming PTAB decisions without issuing opinions.”
A waiver of the right to respond was also filed in Edwards Lifesciences Corp. v. Meril Life Sciences Pvt. Ltd., another patent case presenting the following question:
- “Whether, under Hatch-Waxman’s safe harbor, an infringing act is ‘solely for uses reasonably related’ to the federal regulatory process, when the infringing act is performed for both regulatory and non-regulatory uses.”
Brief in Opposition
In Salix Pharmaceuticals, Ltd. v. Norwich Pharmaceuticals Inc., a case concerning appellate procedure, Norwich Pharmaceuticals filed its brief in opposition to the petition. The petition presented the following questions:
- “When a district court’s findings of fact are unsupported by the evidence the district court relied on, may a court of appeals affirm based on other evidence in the record, particularly when the relevance of that evidence depends on unresolved factual disputes.”
- “When a district court’s findings of fact rely on impermissible evidence, what standard applies to determine whether the error is harmless.”
Now, in response, Norwich Pharmaceuticals argues that “the petition’s fundamental premise—that the majority affirmance is based on an ‘erroneous approach to appellate review’—is simply incorrect.” According to Norwich Pharmaceuticals, “the majority’s affirmance was not premised on new fact-finding,” and “the majority did not apply the harmless-error standard the petition contends is improper.” Additionally, it contends, the petition, “fails to establish that the Federal Circuit regularly engages in the claimed incorrect appellate practices” because two of the opinions offered as examples “are nearly forty years old, and none of them are convincing examples.” Norwich Pharmaceuticals also argues that “the petition makes no attempt to establish that this is a recurring issue within the Federal Circuit,” given that it cites opinions from “the Ninth, Eighth, and Fourth Circuits.” Norwich Pharmaceuticals further asserts that the underlying obviousness determination is correct because the “district court faithfully followed” the Federal Circuit’s “framework for analyzing obviousness.”
Amicus Brief
One new amicus brief was filed in Edwards Lifesciences Corp. v. Meril Life Sciences Pvt. Ltd., one of the patent mentioned above involving the following question:
- “Whether, under Hatch-Waxman’s safe harbor, an infringing act is ‘solely for uses reasonably related’ to the federal regulatory process, when the infringing act is performed for both regulatory and non-regulatory uses.”
The Advanced Medical Technology Association filed an amicus brief in support of the petitioner. In this brief, AMTA asserts that “Congress established a limited safe harbor” in the Hatch-Waxman Act “that shields otherwise-infringing conduct undertaken ‘solely’ for the purpose of obtaining regulatory approval.” According to this brief, the Federal Circuit “read ‘solely’ out of the statute—and replaced it with ‘partially,'” before continuing “to make a hash of the safe harbor act in related ways.” The brief asserts the Federal Circuit “convert[ed] Congress’s narrow exception into an easily exploited loophole for bad-faith actors.”
Denials
Since our last update, the Supreme Court denied certiorari in the following cases: