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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 three patent cases and three pro se cases. The Court also received a waiver of the right to respond in one of those patent cases and an amicus brief in another patent case. In addition, the Court denied petitions in two patent cases and two pro se cases. Here are the details.

Granted Cases

There is no new activity to report.

Petition Cases

New Petitions

In Atturo Tire Corporation v. Toyo Tire Corp., a patent case, Atturo Tire Corporation asked the Court to review the following question:

  • “Should this Court certify to the Illinois Supreme Court whether Illinois’ absolute litigation privilege bars Atturo’s claims of tortious interference with business expectancy, unfair competition, and unjust enrichment, and, if the Illinois Supreme Court rules it does not, remand for proceedings consistent with the Illinois opinion?”

In Hikma Pharmaceuticals USA Inc. v. Amarin Pharma, Inc., a patent case, Hikma Pharmaceuticals USA Inc asked the Court to review the following questions:

  1. “When a generic drug label fully carves out a patented use, are allegations that the generic drugmaker calls its product a ‘generic version’ and cites public information about the branded drug (e.g., sales) enough to plead induced infringement of the patented use?”
  2. “Does a complaint state a claim for induced infringement of a patented method if it does not allege any instruction or other statement by the defendant that encourages, or even mentions, the patented use?”

In Koss Corporation v. Bose Corporation, another patent case, Koss Corporation asked the Court to review the following question:

  • “When a district court grants a Rule-12(b)(6) motion to dismiss but does so without prejudice and with leave to amend, may that non-merits determination be given collateral-estoppel effect on the theory that it merged into a later with-prejudice dismissal stipulation?”

In Al Shara v. United States, a pro se petitioner filed a petition with the Court.

In Katz v. Department of Justice, another pro se case, Katz asked the Court to review the following questions:

  1. “Whether the Federal Circuit erred in denying the request for a rehearing en banc, given that Eric Katz suffered through a hostile work environment and was punished for being a whistleblower by the Department of Justice, which evidence was completely ignored by the Administrative Judge of the Merit Systems Protection Board and then upheld by the Federal Circuit?”
  2. “Whether the Federal Circuit erred in denying the request for a rehearing en banc, given that the Department of Justice retaliated against Eric Katz for his complaints, which evidence was completely ignored by the Administrative Judge of the Merit Systems Protection Board and then upheld by the Federal Circuit?”

In Mattison v. Department of Veterans Affairs, another pro se case, Mattison asked the Court to review the following questions:

  1. “Whether the U. S. Court of Appeals for the Federal Circuit is required to vacate a transfer order if transfer violated 28 U.S.C. §1631.”
  2. “Whether an erroneous transfer from a U.S. Appellate court to a lower court falls within the preview of the ‘Collateral [O]rders Doctrine’.”
  3. “Whether a transfer that fails to comply with provisions of 28 U.S.C. §1631 is void, and if so”
  4. “Whether the Federal Circuit is required to Order the case returned.”

Waiver of the Right to Respond

A waiver of the right to respond to a petition was filed in Koss Corporation v. Bose Corporation, one of the patent cases mentioned above.

Amicus Brief

A new amicus brief was filed in Brumfield v. IBG LLC, a patent case presenting the following questions:

  1. “Whether the lower courts abused their discretion by denying the meritorious Rule 60(b)(3) motion, and whether Rule 60(b)(3) requires a showing that a moving party was diligent in uncovering fraud, misrepresentation, or misconduct to obtain relief from a judgment?”
  2. “Whether this Court’s three categorical judicial exceptions to patent eligibility that are further defined by the two-step Alice/Mayo test impose limitations on patent eligibility that are inconsistent with the text of 35 U.S.C. § 101 of the Patent Act of 1952?”
  3. “Whether this Court’s supervisory authority is needed to correct the Federal Circuit’s improper (1) application of Rule 56 to patent cases and (2) practice of deciding issues that were never argued or briefed on appeal?”

Audio Evolution Diagnostics, Inc. filed the amicus brief. In it, Audio Evolution Diagnostics asserts that the “problem” with the “lower courts’ application of Alice/Mayo” “will not go away . . . [and] will get worse and worse.” According to the brief, “[w]ithout clarity, patent owners cannot know with any certainty where their property right in their patent begins and ends.” It further argues that, “[i]n the absence of intervention from this Court, the core objective of patent law—fostering innovation—has been undermined.” The brief asserts that “this case is an ideal vehicle for addressing the issue,” because “the application of the ‘abstract idea’ question to the technology at issue . . . is straightforward,” “the factual record is well-developed,” and “patents with substantially similar claims to the claims invalidated by the courts below were previously upheld as patent eligible.”

Denials

Since our last update, the Supreme Court denied certiorari in the following cases: