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, there has been no new activity since our last post. With respect to pending petitions, one new petition was filed in a patent case; two waivers of right to respond to petitions were filed in patent cases; a new brief in opposition was filed in a patent case; and the Court denied two petitions, one in a patent case and one in a pro se case. 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 Petition

Since our last update, one new petition was filed in a case decided by the Federal Circuit. In In re Micron Technology, Inc., a patent case, Micron Technology asked the Court to consider the following question:

  • “Does a district court clearly and indisputably err in ordering production of sensitive technical documentation without applying the standards set forth in the parties’ protective order and without considering the Executive Branch’s national-security interests in the documentation at issue?”

Waivers of Right to Respond

Since our last update, two waivers of right to respond to petitions were filed.

One was filed in McLeay v. Stewart, a patent case raising the question “[w]hether 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.”

The other was filed in In re Micron Technology, Inc., the case discussed above regarding production of sensitive technical documentation.

New Brief in Opposition

Since our last update, a brief in opposition has been filed in Purdue Pharma L.P. v. Accord Healthcare, Inc. In this case, the petition asks the Court to consider “[w]hether . . . the objective indicia of non-obviousness should be analyzed flexibly to combat hindsight bias or instead subject to the Federal Circuit’s rigid rules restricting the inquiry.”

In its brief in opposition, Accord Healthcare contends “Purdue’s argument hinges on the faulty premise that (i) Purdue was the first to develop oxycodone tablets with abuse-deterrent features such as resistance to crushing and syringing and (ii) the Federal Circuit applied a rigid nexus test to disregard ‘compelling’ evidence of non-obviousness.” Regarding the first premise, it suggests “[t]he only alleged novelty of Purdue’s claims was using subsequent heating . . . rather than simultaneous” and maintains “[t]he district court did not find Purdue’s evidence ‘compelling’ as Purdue suggests.” Regarding the second premise, Accord argues that, “rather than applying a rigid nexus rule, the Federal Circuit found no clear error in a non-precedential decision that drew no dissent.” Accord maintains “the district court’s findings, which the Federal Circuit found not clearly erroneous, were not based on any overly ‘rigid’ nexus test but on the fact that Purdue failed to show that the commercial success of OxyContin was due to any novel aspect of the claimed invention.”

Denials

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