Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. Since our last update, the Supreme Court set a date for oral argument in a patent case; a new petition was filed in a patent case addressing expert witness testimony and the standard for granting judgment as a matter of law; a waiver of the right to respond to a petition was filed; a reply brief was filed in support of a petition in a takings case; and an amicus brief was filed in a patent case addressing appellate procedure. Here are the details.
Pending Cases
Since our last update, the Supreme Court has set oral argument for Hikma Pharmaceuticals USA Inc. v. Amarin Pharma, Inc. for April 29. As a reminder, that case addressed induced infringement and so-called skinny labeling.
We are also waiting for the Supreme Court’s decision in Trump v. V.O.S. Selections, Inc.
Pending Petitions
New Petitions
Since our last update, Finesse Wireless filed a petition in a patent case, Finesse Wireless LLC v. AT&T Mobility LLC. The petition asks the Court to review the following question:
- “Whether a purported inconsistency in the testimony of an expert witness is an issue of credibility for the jury to resolve, as every regional circuit holds, or whether it instead supplies a basis for a judgment as a matter of law, as the Federal Circuit held below and routinely holds in other cases.”
Waivers of the Right to Respond
In the same case discussed above, Finesse Wireless LLC v. AT&T Mobility LLC, Nokia of America Corporation filed a waiver of the right to respond to the petition.
Reply Brief
Since our last update, the United Water Conservation District filed a reply brief in United Water Conservation District v. United States, a takings case. As a reminder, the petition presented the following question:
- “Whether the government’s appropriation of water that a person had a property right to use is analyzed as a physical taking, rather than a regulatory taking, under the Fifth Amendment.”
In the the United States’ brief in opposition, the government argued the Federal Circuit “correctly held” that the United Water Conservation District’s takings allegations “do not state a claim for a physical taking under the Fifth Amendment, and its decision does not conflict with any decision of this Court or another court of appeals.” Additionally, the United States contended, this case is a “poor vehicle for the Court’s review because petitioner’s framing of the question presented rests on the erroneous premise that the government imposed a compulsory restriction on petitioner’s diversion of water.”
Now, in its reply brief, the United Water Conservation District argues the Federal Circuit’s decision “sets a dangerous national precedent.” UWCD contends the “[p]etitioner is legally entitled to a fixed quantum of river water; [and] the government ordered it to forfeit a massive amount,” which constitutes “a textbook physical taking.” According to UWCD, the proposition that “the government’s appropriation of petitioner’s water necessarily stopped petitioner from using it cannot transform its action into a mere use restriction.” UWCD contends the Supreme Court rejected “the same semantic shell game” in a prior case. Furthermore, UWCD asserts, the “government offer[ed] nothing to refute the importance of the question presented.” Lastly, UWCD refutes the government’s argument that the Court should “forgo review to await a better vehicle” because the government “identifies no defects here.”
Amicus Brief
Since our last update, Professor Joan E. Steinman filed an amicus brief supporting the petitioner in Comcast Cable Communications, LLC v. WhereverTV, Inc., a patent case. The petition presented the following question:
- “Whether a court of appeals may override the principle of party presentation by deciding sua sponte a non-jurisdictional issue that a party deliberately waived.”
Now, in her amicus brief, Professor Steinman argues the “Federal Circuit’s approach in this case . . . significantly erodes the party-presentation principle.” Professor Steinman contends the party-presentation principle “is critical” because it “safeguards the parties’ due process rights” by ensuring that “neither party is at risk of a surprise outcome resting on an issue that was never raised, never briefed, and never addressed by the district court.” Professor Steinman asserts, “the current state of the law is damaging to parties, damaging to district courts, and damaging to the overall operation and perception of the justice system.”