Here is an update on recent activity at the Supreme Court. With respect to granted cases, the respondent’s merits brief was filed in Soto v. United States, a veterans case. While no new petitions were filed, one new reply in support of a petition was filed in Celanese International Corp. v. International Trade Commission, a patent case addressing the on-sale bar. Here are the details.
Granted Cases
New Response
Since our last update, the government filed its merits response brief in Soto v. United States, a veterans case. The Supreme Court granted certiorari to review the following question:
- “Given the Federal Circuit’s holding that a claim for compensation under 10 U.S.C. § 1413a is a claim ‘involving . . . retired pay’ under 31 U.S.C. § 3702(a)(l)(A), does 10 U.S.C. § 1413a provide a settlement mechanism that displaces the default procedures and limitations set forth in the Barring Act?”
In Soto’s opening merits brief, he asserted that “the statute on its face authorizes the Secretary concerned to determine whether a veteran is eligible for” Combat-Related Special Compensation “and what amount of CRSC should be paid,” and that “[t]he Barring Act has no application here.” He argued that “[n]o authority supports the Federal Circuit’s ‘specific language’ requirement” and that the “case law teaches away from interpreting statutes based on the presence or absence of ‘magic words.’” According to Soto, moreover, “the Federal Circuit should have applied the veterans canon—which was widely accepted, and presumably known to Congress, at the time the CRSC statute was enacted.” He further asserted that “the Federal Circuit’s suggestion that the CRSC statute must impose a statute of limitations to displace the Barring Act is inconsistent with the text of the Barring Act,” which makes clear that all of the Barring Act, including it statute of limitations, “does not apply to a claim if ‘another law’ provides for settlement, without regard to whether the other law also includes a statute of limitations.”
Now, in its response brief, the government asserts that the “well-established framework [of 31 U.S.C. § 3702] governs unless ‘another law’ provides a different settlement mechanism, or establishes a different limitations period, for a particular type of claim.” And, the government argues, “[w]hen Congress has intended to displace [§] 3702’s settlement mechanism in full or in part, it has done so expressly.” But, it argues, “Congress included no such express statements in [10 U.S.C. §] 1413a.” According to the government, moreover, the “[p]etitioner identifies no other form of military compensation for which unlimited retrospective awards are available.” Nonetheless, the government points out, Soto “maintains that CRSC is the exception.” The government explains that Soto’s position is “that Congress’s intent to displace [§] 3702 can be gleaned from the various details that the CRSC statute covers.” The government asserts, however, that “all of the features” Soto identifies “are present in numerous other statutes that authorize various forms of military pay, allowances, and other benefits.” It argues that, “[i]f these unremarkable features of the CRSC statute . . . implicitly supplanted [§] 3702’s settlement mechanism and its six-year time bar, then the Department of Defense could be exposed to open-ended retrospective liability for all kinds of claims from former service members (and their dependents) for all kinds of past-due amounts.”
Petition Cases
New Reply
In Celanese International Corp. v. International Trade Commission, a patent case, Celanese International filed its reply brief in support of its petition. The petition presented the following question:
- “Whether the sale of an end product made by secret use of a later-patented process places ‘the claimed invention’—that is, the process itself—on sale and thus invalidates the patent on that process, even where the claimed process was not disclosed by the sale and cannot be discovered by studying the end product.”
In its response brief, the International Trade Commission argued that “longstanding precedents” related to the on-sale bar “appl[y] in this situation.” The ITC further asserted that Celanese “initially did not dispute the state of the pre-AIA law on this question.” And, the ITC argued, Celanese “identifies no decision holding that the on-sale bar does not apply when an inventor sells a product made (secretly or otherwise) through use of a process invention.”
Additionally, in their separate response brief, Jinhe Industrial Co., Ltd. and Jinhe USA LLC highlighted how Celanese claimed that “Congress abrogated the settled understanding of the on-sale bar, as it applies to process patents, when it enacted the AIA.” But, they said, in fact “[s]ettled precedent from this Court and the Federal Circuit established that the on-sale bar applies in the circumstances here.” Furthermore, they argued, “nothing in the AIA shows Congress’s intent to abrogate that settled understanding.”
Now, in its reply, Celanese argues the respondents have “no good answer to the actual statutory text” and so they “bend over backwards to avoid it.” Celanese asserts that text “plainly only restricts pre-patenting sales of the claimed invention—not sales of something else.” According to Celanese, “[b]y rewriting the statute to go beyond sales of the invention itself, the Federal Circuit has created bad law and sown unnecessary confusion about the scope of interrelated provisions.” Celanese further asserts that “respondents seek to enshrine a smattering of old, policy-laden, atextual lower court decisions as the governing law about the ‘on sale’ bar.” According to Celanese, the fact “[t]hat the Federal Circuit misinterpreted plain pre-AIA statutory text is no reason to leave standing the Circuit’s incorrect interpretation of the AIA.” And, Celanese argues, its “complaint is not with Helsinn, but with the Federal Circuit’s adherence to its own patent policy preferences over the text Congress enacted.”