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. With respect to petitions, new petitions were filed in two patent cases. The court also received a waiver of the right to respond to one of the petitions in those patent cases, a brief in opposition to a petition in another patent case, and three new amicus briefs in support of the petitioner in yet another patent case. Here are the details.
Granted Cases
There is no new activity to report.
Petition Cases
New Petitions
In Broadband iTV, Inc. v. Amazon.com, Inc., a patent case, Broadband iTV asked the Court to review the following question:
- “Whether there is a patent-specific exception to Rule 56, such that courts may grant summary judgment of patent ineligibility despite genuine disputes of material fact regarding whether claim elements are well-understood, routine, or conventional at Alice Step 2.”
In Impact Engine, Inc. v. Google LLC, another patent case, Impact Engine asked the Court to review the following questions:
- “Whether the lodestar for determining patent eligibility under this Court’s two-step framework is whether the patent claims preempt basic technological or scientific building blocks.”
- “Whether, when a court is determining if an invention claimed in purely functional terms under § 112(f) is patent-eligible under § 101, it must consider not just the functional claim language but also the specific corresponding structure defining the patent claim’s scope under § 112(f).”
Waiver of Right to Respond
A waiver of the right to respond was filed in Impact Engine, Inc. v. Google LLC, one of the patent cases mentioned above.
Brief in Opposition
In Lighting Defense Group LLC v. SnapRays, LLC, a patent case, SnapRays filed its brief in opposition to the petition. The petition presented the following question:
- “Whether a defendant subjects itself to personal jurisdiction anywhere a plaintiff operates simply because the defendant knows its out-of-forum other conduct ‘would necessarily affect marketing, sales, and activities’ within the forum, Pet.App.11a—even though the defendant has no contacts with the plaintiff or the forum whatsoever.”
Now, in response, SnapRays argues the case “does not present an issue worthy of this Court’s review.” As for why, SnapRays maintains that the petitioner’s “arguments are based on fundamental mischaracterizations of the factual record and this Court’s precedents.” Specifically, SnapRays argues, the “Federal Circuit’s decision that personal jurisdiction over LDG in Utah was proper comports with” the Supreme Court’s “personal jurisdiction precedents and with the decisions of its sister circuits.” It contends the petitioner “in fact had sufficient contacts with SnapPower and the forum” in the form of “intentional action to invoke a procedure that would automatically curtail SnapPower’s sales, marketing, and the stream of commerce in Utah.” And, SnapRays argues, the petitioner’s “asserted circuit split rests on a mischaracterization of the Federal Circuit’s decision and a similarly distorted reading of lower courts’ caselaw.” In fact, SnapRays maintains, “[t]here is no split.”
Amicus Briefs
Three new amicus briefs, all in support of the petitioner, were filed in DISH Network L.L.C. v. Dragon Intellectual Property, LLC, a patent case presenting the following questions:
- “Whether the Patent Act’s fee-shifting statute allows a district court discretion to impose joint and several liability for the fee award on a party’s attorney whose actions substantially contribute to the exceptionality of the case.”
- “Whether the same fee-shifting statute allows a district court discretion to award attorney’s fees incurred by a prevailing accused infringer in a parallel administrative proceeding to invalidate a patent.”
Nextremity Solutions LLC filed an amicus brief. In this brief, it argues that “[n]othing in the statutory language itself limits the word ‘cases’ in [35 U.S.C.] § 285 to exclude fees incurred in related [inter partes review proceedings], whether voluntarily or involuntarily pursued.” According to this brief, the Federal Circuit ignored a holding “by never considering whether an IPR was intimately tied to the resolution of the issues in the district court action in refusing to award attorney fees under § 285.” The brief further asserts that “IPR proceedings are intimately tied to the resolution of a District Court action because the IPR decision on the validity of the asserted claims would have res judicata effect on the parties in the litigation” and, moreover, “may . . . completely supplant the district court action on the issue of invalidity.”
Unified Patents, LLC filed an amicus brief. In its brief, it asserts the Federal Circuit “ignores [35 U.S.C § 285]’s broad text,” “weaken[ing] a district court’s ability to deter exceptional conduct,” by limiting “who is liable” and “how.” According to the brief, “[t]he panel decision concedes that ‘[§] 285 is silent as to who can be liable for a fee award,’ . . . [but] the court reads into it an implied restriction that protects attorneys from the consequences of their own exceptional conduct.” The brief further asserts that holding “broadly and categorically insulates lawyers who engage in bad faith conduct.” According to this brief, a “[h]olding that [§] 285 can never reach such counsel regardless of district court discretion undermines ‘elemental notions of fairness,’ which ‘dictate that one who causes a loss should bear the loss.'”
The High Tech Inventors Alliance and the National Retail Federation also filed an amicus brief. This brief argues there has been a circuit split and that, to resolve that split, the Supreme Court should establish “whether an attorney’s liability under a fee-shifting statute always requires a clear statement in the statute . . . [or if it] is permitted when the statute is ‘meant to control the conduct of litigation'” and the attorney alone is “responsible for the litigation misconduct.” According to this brief, “[t]here is no reason to believe that the Congresses enacting fee-shifting statutes intended that lawyers alone among the participants in a lawsuit should be immunized from the consequences of their misconduct.” It contends that, with hundreds of fee-shifting statutes in force, “[i]t strains credulity to suppose that Congress ‘had in mind’ a substantive canon excluding attorneys from every one of these statutes’ reach.” The brief further asserts that 28 U.S.C. § 1927 and Federal Rule of Civil Procedure 11 are not “more appropriate vehicles to recover fees from counsel,” because they “are different statutes that serve different purposes than § 285.”