Featured / Supreme Court Activity
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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 petitions, as we noted last week the Supreme Court recently held held oral argument in one case decided by the Federal Circuit and issued an opinion in another. With respect to pending petitions, the Court granted two petitions, vacated the judgments, and remanded the cases in light of the Court’s holding in a case originally decided by the Merit Systems Protection Board. Also, a new petition was filed in a patent case raising a question related to the ability of a court of appeals to revive a waived argument; a brief in opposition and a reply brief were filed in another patent case raising questions related to patent eligibility and Federal Circuit Rule 36; and a brief in opposition was filed in yet another patent case raising questions concerning so-called skinny labels. Finally, the Court denied two petitions, one raising questions related to ripeness of takings claims and the other raising a question related to the on-sale bar to patentability. Here are the details.

Granted Petitions

As we noted last week, the Supreme Court recently held oral argument in one case decided by the Federal Circuit and issued an opinion in another.

Oral Argument

In late April, the Supreme Court heard oral argument in Soto v. United States. The Court granted review to consider whether a statutory provision governing Combat-Related Special Compensation, 10 U.S.C. § 1413a, provides a settlement mechanism that displaces the default procedures and limitations set forth in the Barring Act. Here is our argument recap.

New Opinions

Also in late April, the Supreme Court reached a decision in Feliciano v. Department of Transportation. In this case, the Court granted certiorari to determine whether “a federal civilian employee called or ordered to active duty under a provision of law during a national emergency is entitled to differential pay even if the duty is not directly connected to the national emergency.” The Court reversed the Federal Circuit, which had held that differential pay is required only if the employee’s duty is directly connected to the national emergency. Here is our opinion summary.

Pending Petitions

Grant, Vacate, and Remand

Since our last update, the Supreme Court granted two petitions related to cases decided by the Merit Systems Protection Board, vacated the judgments, and remanded the cases in light of the Court’s holding in Feliciano v. Department of Transportation:

New Petition

In McLeay v. Stewart, a patent case, McLeay filed a petition asking the Court to review the following question:

  • “Whether a court of appeals may sua sponte revive an argument the government has impliedly waived on appeal and rely on the waived argument in ruling in the government’s favor.”

Waiver of Right to Respond

A waiver of right to respond was filed by the United States in Servant Health, LLC v. United States, a government contract case.

Briefs in Opposition

Two briefs in opposition were recently filed.

Hikma Pharmaceuticals USA Inc. v. Amarin Pharma, Inc.

A brief in opposition to the petition was filed in Hikma Pharmaceuticals USA Inc. v. Amarin Pharma, Inc., a patent case presenting 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 its brief in opposition, Amarin argues that Hikma’s petition fails to identify a genuine issue because the “petitioners provide no reason to disturb the long-standing consensus that patent infringement ‘is a question of fact,'” and the opinion below does not conflict with precedent. Thus, Amarain contends, the petition should be denied. Furthermore, Amarin addresses Hikma’s claim that the Federal Circuit applied the wrong pleading standard by stating that, “[p]utting aside the fact that this argument seeks only fact-bound error correction, the Federal Circuit made no such error.” Amarin suggests the Federal Circuit “cited many factual allegations that together suggested” Hikma encourages the patented use, and the petitioners “simply disagree with the inferences drawn from those allegations.” Amarin goes on to say that “[w]hat petitioners really want is a heightened pleading standard under which a defendant cannot face discovery for induced infringement unless its communications recite all the patent claim language,” which, they state, “is not the law.” Finally, Amarin maintains the petition should be denied because it “presents no issue worthy of this Court’s review,” the “case turns on facts and any decision would have limited general applicability,” it is a “poor vehicle for the issues raised by the petitioners and their amici,” and “the court of appeals correctly concluded that respondents plausibly pleaded a claim for induced infringement.”

Audio Evolution Diagnostics, Inc. v. United States

A brief in opposition was also filed in Audio Evolution Diagnostics, Inc. v. United States, another patent case presenting the following questions:

  1. “Whether this Court should clarify its Alice and Mayo rulings at steps one and two by focusing on the language of 35 U.S.C. § 101 itself and differentiate patent-eligibility determinations under § 101 from fact-based well-understood, routine, and conventional questions of novelty, obviousness, and enablement under §§ 102, 103, and 112.”
  2. “Whether this Court should find that the Federal Circuit is abandoning its role of articulating patent law precedent and bringing uniformity to patent law with its overuse of Federal Circuit Rule 36 to summarily affirm decisions of lower tribunals involving unsettled and complex issues of patent law.”

In its brief in opposition, with respect to the first question presented, the government concedes that “the United States has urged this Court to grant certiorari to clarify the proper allocation of Section 101.” But, the government explains, “this Court has repeatedly denied petitions seeking review of Federal Circuit Section 101 decisions.” Moreover, it says, “this case does not present any better vehicle for reexamining Section 101 than those other cases did.” With respect to the second question presented, the United States asserts the question “does not warrant this Court’s review” because “the judgment under review contains no ‘error of law’ and ‘an opinion would have no precedential value.'”

Reply

In the case just discussed, Audio Evolution Diagnostics, Inc. v. United States, a reply brief was also filed.

Regarding the first question presented, Audio Evolution Diagnostics (AED) points out “the government finally agreed that AED’s patents were valid when it announced in response to the petition that it ‘will not defend’ the dismissal by the Claims Court below determining the patents-in-suit are invalid . . . and will instead ‘argue that the relevant claims are patent-eligible under Section 101.” But, according to AED, “the government’s stated commitment to petitioner ‘to argue that the relevant claims are patent-eligible under Section 101’ and permit petitioner’s claims to proceed will never happen unless the petition is granted.” More generally, AED says, it “is entitled to a measure of justice here.” Furthermore, AED contends the “Solicitor General offered no valid reason why this case is not the right vehicle” to revisit Section 101. AED cites several reasons why this case is the right vehicle. It says “[t]he record is limited,” “the technology is not complicated,” and “the patents claim an apparatus” instead of a method.

Regarding the second question presented, it argues “Rule 36 undermines the Federal Circuit’s requirement to provide constitutional due process.”

Denials

Since our last update, the Court has denied the petition in two cases: