Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. With respect to granted petitions, there has been no new activity since our last post. With respect to pending petitions, there were three waivers of right to respond to petitions, one in a pro se case, one in a patent case, and another in a government contracts case. There were also two new replies filed in support of petitions in patent cases. Finally, there were two denials of petitions filed in patent cases. Here are the details.
Granted Petitions
Since our last update, there has been no new activity in pending cases. We are still waiting for the Court to decide Soto v. United States, a case addressing veterans law.
Pending Petitions
New Petitions
Since our last update, there have been no new petitions filed in cases that were decided by the Federal Circuit.
Waivers of Right to Respond
Since our last update, waivers of right to respond were filed in the following cases:
- Carlborg v. United States (pro se)
- NexStep, Inc. v. Comcast Cable Communications, LLC (patent)
- Servant Health LLC v. United States (government contract)
New Replies
Since our last update, two new reply briefs in support of petitions have been filed.
Atturo Tire Corp. v. Toyo Tire Corp.
In this case, the petition presented 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 its brief in opposition, Toyo Tire argued “the principle, that privileged conduct is . . . protected from alternative tort theories, is settled in Illinois and further review is not required.” Moreover, Toyo Tire suggested, since “both the district court and the Federal Circuit held that Toyo’s challenged conduct is pertinent/privileged . . . the issue of ‘pertinence’ and whether the ‘privilege applies’ to Toyo’s conduct is conclusively resolved.” Furthermore, it said, “prolonging this case through certiorari and state court referral is unnecessary and against the public interest.” Toyo Tire also argued “the petition relies on so many factual arguments that it is difficult to imagine what legal principle this Court could appropriately certify for state court review.” Finally, according to Toyo Tire, “this petition is only ‘outcome determinative’ if that outcome is the same result as denial of certiorari.”
Now, in its reply, Atturo Tire argues the petition should be granted because this case “presents an important undecided and outcome-determinative state-law question regarding the scope of Illinois’ absolute litigation privilege.” It suggests “Toyo’s efforts to dispute the propriety of Atturo’s certification request and downplay the sweeping implications of the Federal Circuit’s ‘prediction’ are both factually and legally wrong.” It argues “[t]he Federal Circuit found that Illinois case law did not provide it with the necessary guidance to apply the absolute litigation privilege and thus it needed to ‘predict’ what to do.” Furthermore, Atturo Tire argues, its petition “contains ample narrative of the operative facts from which the Illinois Supreme Court can fully ascertain the nature of the dispute,” and the court would “also have access to the entire Federal Circuit record, including briefs and appendices.” Finally, Atturo Tire contends “[t]he question Atturo asks the Court to certify is ‘outcome-determinative’ because it did, in fact, determine the outcome” of the lower courts’ decisions. It reasons that “the presence of issues that may remain after a certified question is answered presents no obstacle to certification where, as here, the certified question was determinative of proceedings below.”
Hikma Pharmaceuticals USA Inc. v. Amarin Pharma, Inc.
In this case the petitioner raised the following questions:
- “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?”
- “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 argued 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. Furthermore, Amarin addressed 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 indicated the Federal Circuit “cited many factual allegations that together suggested” Hikma encouraged the patented use, and the petitioners “simply disagree with the inferences drawn from those allegations.” Amarin went 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 maintained 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.”
Now, in its reply, Hikma argues “[t]he decision below urgently warrants review because it exposes every generic drugmaker marketing the ‘generic version’ of a branded drug to potentially catastrophic damages, even if the generic omits all patented uses from its label.” It contends “Amarin falsely declares that Hikma ‘began marketing [its generic drug] broadly for unpatented and patented uses‘ and ‘actively encouraged physicians to prescribe Hikma’s generic drug so as to infringe Amarin’s patents.'” Hikma explains that it “called its product a ‘generic version’ or ‘generic equivalent’ of Vescepa . . . [and] correctly stated Vascepa is indicated ‘in part’ for the the noninfringing severe hypertriglyceridemia (‘SH’) indication.” Moreover, it says, “Hikma’s website included . . . ‘an express disclaimer that Hikma’s product is FDA-approved for fewer than all uses of Vascepa.'” Hikma argues that, “[i]f this were enough to assert inducement, Hatch-Waxman’s section vii would be a dead letter—as well as the Patent Act’s requirement for ‘actively induc[ing]’ all claimed method steps.” It asserts “[t]his case is about vague statements in press releases that are not directed to doctors and do not describe any treatment steps.” It says a circuit “split is undeniable.” It concludes by saying the Supreme Court “need not wait for widespread abuse of the Federal Circuit ruling that misinterprets the Hatch-Waxman Act.”
Denials
Since our last update, the Court denied petitions in two patent cases, including one case discussed above: