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 regard to granted petitions, there is no new activity. With regard to pending petitions, two new petitions were filed in pro se cases, and a new reply brief was filed in a patent case raising a question regarding objective indicia of non-obviousness. The Court also denied a petition in another pro se case. Here are the details.

Granted Petitions

There are no pending cases at the Supreme Court that were decided by the Federal Circuit.

Pending Petitions

New Petitions

Since our last post, two new petitions were filed in pro se cases:

Reply

Since our last update, one reply brief in support of a petition has been filed.

In Purdue Pharma L.P. v. Accord Healthcare, Inc., 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 contended “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 suggested “[t]he only alleged novelty of Purdue’s claims was using subsequent heating . . . rather than simultaneous” and maintained “[t]he district court did not find Purdue’s evidence ‘compelling’ as Purdue suggests.” Regarding the second premise, Accord argued that, “rather than applying a rigid nexus rule, the Federal Circuit found no clear error in a non-precedential decision that drew no dissent.”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 maintained “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.”

Now, Purdue Pharma argues in its reply that “[t]his case epitomizes the Federal Circuit’s rigid approach and provides an ideal vehicle for review of the question presented.” Purdue criticizes the Federal Circuit’s analysis, questioning how “a court could credit Accord’s motivation-to-combine theory in finding obviousness, but then deem the same facts irrelevant in assessing the objective indicia of non-obviousness.” According to Purdue, this “highlights how severely the Federal Circuit’s rigid approach has skewed the analysis.” Purdue argues the Supreme Court “should grant review to ‘clarify its approach to objective indicia of non-obviousness and restore both flexibility and balance’ to the obviousness inquiry.” According to Purdue, “[w]ithout further guidance from this Court, the Federal Circuit will continue to apply its rigid approach, undermining an important check on hindsight bias and inviting the over-invalidation of patents.”

Denial

Since our last post, the Supreme Court denied the petition in the following case: