Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. Since our last update, there is no new activity in granted cases. As for pending petitions, one new petition was filed in a patent case raising a question related to what qualifies as a printed publication. Two new reply briefs were filed, one supporting a petition raising a question related to the Lanham Act and one supporting a petition raising a question related to the activities of the Patent Trial and Appeal Board. Here are the details.
Granted Petitions
There is no new activity in granted cases since our last update. As a reminder, the only case pending at the Supreme Court that was decided by the Federal Circuit is Trump v. V.O.S. Selections, Inc.
Pending Petitions
New Petition
Since our last update, Lynk Labs filed a petition in Lynk Labs, Inc. v. Samsung Electronics Co., a patent case. The petition asks the Court to consider the following question:
- “Whether patent applications that became publicly accessible only after the challenged patent’s critical date are ‘prior art . . . printed publications’ within the meaning of 35 U.S.C. §311(b).”
New Replies
Since our last update, two new reply briefs in support of petitions have been filed.
Crocs, Inc. v. Double Diamond Distribution, Ltd.
Crocs filed its reply brief. Its petition asked the Court to consider the following question:
- “Whether the Lanham Act’s prohibition on ‘misrepresent[ations]’ as to ‘nature, characteristics, [or] qualities’ extends to misrepresentations about the product’s intangible properties, like its patent status.”
In its brief in opposition, Double Diamond Distribution argued the case’s “interlocutory posture is reason enough to deny certiorari.” It explained “Crocs is effectively asking this Court to review the denial of summary judgment.” But, said Double Diamond Distribution, the Court’s “established practice is to await final judgment in the lower courts before exercising [its] certiorari jurisdiction.” Anyway, Double Diamond Distribution claimed, there is no circuit split. Moreover, it said, “[t]here is no good reason to think the Federal Circuit’s ruling is the ‘speech-stifling’ ‘watershed’ Crocs imagines it to be.”
Now, in its reply brief, Crocs suggests Double Diamond Distribution is “[u]nable to defend the Federal Circuit’s actual decision” and, instead, actually “now agrees” that the Lanham Act “requires a misleading statement about a product’s physical or functional attributes.” According to Crocs, the opposition to the petition “collapses because the panel’s holding expands” the Lanham Act “to capture misstatements about intangibles.” Crocs also argues the “claim that there is no circuit split implicated here . . . dissolves upon scrutiny.” Likewise, it says, the “efforts to portray this as a nothing-to-see-here case . . . likewise fail.” In response to the argument the case has an interlocutory posture, Crocs says the “Court routinely grants certiorari upon vacatur or reversal of summary judgment, particularly when the case presents an important, purely legal question.”
United States Automobile Association v. PNC Bank N.A.
USAA submitted its reply brief. In the petition, USAA asked the Court to consider the following question
- “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 argued 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 claimed “[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 said, “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 maintained, “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.”
Now, in its reply brief, USAA claims that, “[w]hile the D.C. Circuit has consistently required the agencies it reviews to treat saliently similar cases the same, the Federal Circuit does not recognize any such rule.” USAA asserts the Federal Circuit’s “willingness to require like treatment thus far has been limited to ‘the same parties on the same record.'” According to USAA, the “decision below is just the latest example of the Federal Circuit disregarding the need for materially different facts to justify materially different treatment.” USAA explains how the Patent Trial and Appeal Board itself “emphasized that it was brushing aside the findings it made in its earlier Wells Fargo decisions purely because PNC chose to rely on prior art references that were different in name—without identifying any difference in substance except that PNC had not chosen to use them in its petition.”