Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. There are not currently any cases pending at the Supreme Court that were previously decided by the Federal Circuit. With respect to petitions, since our last update one new petition was filed in a patent case addressing after-arising technology; a waiver of right to respond was filed in the same patent case; and a brief in opposition was filed in another patent case in response to a petition raising a question related to agency adjudication. Here are the details.
Granted Cases
There are not currently any cases pending at the Supreme Court that were previously decided by the Federal Circuit.
Pending Petitions
Since our last update, one new petition was filed in a case decided by the Federal Circuit, a waiver of right to respond to a petition was filed, and a new brief in opposition was filed.
New Petition
In MSN Pharmaceuticals, Inc. v. Novartis Pharmaceuticals Corp., MSN Pharmaceuticals filed a petition presenting the following question:
- “Whether, in a patent-infringement suit, a court may consider after-arising technology to hold that the patent is invalid under § 112(a) of the Patent Act.”
Waiver of Right to Respond
In the same case, MSN Pharmaceuticals, Inc. v. Novartis Pharmaceuticals Corp., Novartis Pharmaceuticals filed a waiver of its right to respond to the petition.
New Brief in Opposition
In United States Automobile Association v. PNC Bank N.A., a patent case, PNC Bank filed its brief in opposition to the petition. The petition asks the Court to consider:
- “Whether an agency decision is arbitrary and capricious when it fails to justify a different result reached on saliently similar facts, but involving a different party?”
In its brief in opposition, PNC Bank argues the petitioner “seeks nothing more than factbound review of a nonprecedential decision affirming a thoroughly supported agency ruling firmly grounded in the record.” PNC Bank claims “[n]o circuit split exists.” Furthermore, according to PNC Bank, the Federal Circuit “did not hold as a matter of principle that like cases may be treated in an unlike manner.” Moreover, it says, “whether the successful challenge PNC presented is sufficiently like or unlike the unsuccessful challenge that another party (Wells Fargo) presented is not an important question of law warranting this Court’s attention.” Even if the Court granted review, PNC Bank maintains, “the record plainly shows that the Board and the Federal Circuit were correct: PNC and Wells Fargo invoked substantively different prior art, offered different expert testimony, and raised different arguments.”