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Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. As for pending cases, since our last update the Supreme Court affirmed the Federal Circuit in President Trump’s tariffs case; a petitioner filed its opening merits brief in a patent case; and an amicus brief supporting the petitioner was filed in the same patent case. As for pending petitions, since our last update one new petition was filed in a patent case; a waiver of the right to respond to a petition was filed in a pro se case; a brief in opposition to a petition was filed in a patent case; a reply brief in support of a petition was filed in a patent case; six amicus briefs supporting the petitioner were filed in a takings case; and the Supreme Court denied petitions in two patent cases and three pro se cases. Here are the details.

Pending Cases

Trump v. V.O.S. Selections, Inc.

Late last week, the Supreme Court decided Trump v. V.O.S. Selections, Inc. By a vote of six to three, the Court affirmed the Federal Circuit’s holding that the International Emergency Economic Powers Act did not authorize tariffs imposed by President Trump. Chief Justice Roberts authored the opinion of the Court, which was joined by Justices Sotomayor, Kagan, Gorsuch, Barrett, and Jackson. Justices Thomas, Kavanagh, and Alito dissented. Except for Justices Sotomayor and Alito, each Justice issued his or her own opinion. For more information, check out our breaking news post highlighting the introductions and relevant excerpts from the opinions.

Hikma Pharmaceuticals USA Inc. v. Amarin Pharma, Inc.

Since our last update, Hikma Pharmaceuticals filed its opening merits brief in Hikma Pharmaceuticals USA Inc. v. Amarin Pharma, Inc. As a reminder, the Court will consider the following questions:

  1. “When a generic drug label fully carves out a patented use, are allegations that the generic drugmaker calls its product a ‘generic version’ and cites public information about the branded drug (e.g., sales) enough to plead induced infringement of the patented use?”
  2. “Does a complaint state a claim for induced infringement of a patented method if it does not allege any instruction or other statement by the defendant that encourages, or even mentions, the patented use?”

Now, on the merits in its opening brief, Hikma Pharmaceuticals contends the patent statute’s plain language requires “(1) an ‘active[]’ step that ‘induce[d]’ (i.e., encouraged) a direct infringer to take specific action; and (2) that induced action must suffice for ‘infringement of a patent,’ including each limitation of a patent claim.” It argues that, “[a]bsent both requirements, there is no active inducement under the statute, and mere inferences or assumptions about how third parties might react to vague communications that lack any instruction or encouragement to infringe cannot trigger liability.” Hikma Pharmaceuticals argues these “requirements apply with equal force on a motion to dismiss.” It asserts that Amarin Pharma’s “complaint fails to state a plausible claim for actively induced infringement.” As for why, it explains that “there is no plausible allegation that Hikma’s statements actively induce specific conduct that satisfies all claim steps for any asserted claim.” Hikma Pharmaceuticals asserts the Federal Circuit’s “passive inducement theory” is “contrary to congressional intent.”

In addition to this opening brief, an amicus brief was filed by 76 Scholars of Law, Business, Economics, and Medicine supporting Hikma Pharmaceuticals.

Pending Petitions

New Petitions

Since our last update, a new petition was filed in Dolby Laboratories Licensing Corp. v. Unified Patents, LLC. In this case, Dolby Laboratories Licensing filed a petition presenting the following questions:

  1. “Whether a patent owner is injured by the Patent Trial and Appeal Board’s refusal to require a petition to identify all real parties in interest.”
  2. “Whether [35 U.S.C.] § 314(d) bars judicial review of a final decision regarding real parties in interest.”

Waivers of the Right to Respond

Since our last update, a waiver of the right to respond to the petition was filed in Healy v. Squires, a pro se case.

Briefs in Opposition

Since our last update, Synthego Corp. filed a brief in opposition to the petition in Agilent Technologies, Inc. v. Synthego Corp., a patent case. The petition asked the Court to review the following questions:

  1. “Should the holding in Rasmusson v. SmithKline Beecham Corp., 413 F.3d 1318, 1326 (Fed. Cir. 2005), that ‘proof of efficacy is not required in order for a reference to be enabled for purposes of anticipation,’ be vacated or significantly narrowed?”
  2. “Should printed publications be presumed to be enabling when a party challenging the validity of issued patent claims asserts that a printed publication is anticipatory prior art, such that the burden of proving that the printed publication is nonenabling lies with the patentee?”

Now, in its brief in opposition, Synthego maintains the “presumption of prior art enablement describes a burden of production, not a burden of persuasion.” According to Synthego, the “petition conflates the two.” Synthego contends the burden of persuasion “never shifts to the patent owner.” Furthermore, Synthego argues, this case is an improper vehicle for the questions presented “because [p]etitioner failed to raise either of the asserted issues below.” As for why, Synthego says “neither issue mattered in light of the findings below.” Lastly, Synthego argues, “the questions present do not warrant review” because there is “no split of authority.”

Reply Briefs

Lynk Labs, Inc. v. Samsung Electronics Co.

In this patent case, Lynk Labs filed its reply brief in support of its petition. The petition asked the Court to review 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).”

In its brief in opposition, Samsung Electronics argued “the Federal Circuit correctly determined that a published patent application asserted as a printed publication in an inter partes review of a pre-AIA patent constitutes prior art as of its filing date.” Samsung Electronics contended Lynk Labs failed to identify “any other statutory provision that would justify giving such publications a different priority date in the context of inter partes review than they carry in district court proceedings (or in the initial patent application process).”

For its part, in its brief in opposition, the government maintained the Federal Circuit “correctly rejected” Lynk Labs’ contention that a patent application “filed before the priority date” of the relevant patent but that “was not published until after that date . . . could not be considered as prior art in an IPR of that patent.” According to the government, the Federal Circuit’s decision “does not warrant” the Supreme Court’s review. Additionally, it asserted, the “petitioner’s argument is foreclosed by the text of Section 102(e)(1) and the special timing rule it establishes.”

Now, in its reply brief, Lynk Labs argues “[p]rior-art ‘printed publications’ in § 311(b) means the same thing courts had always construed that phrase to mean [prior to the America Invents Act]: references that were publicly accessible before the challenged patent’s critical date.” Lynk Labs contends patent applications “that were not publicly accessible until after the critical date . . . do not qualify.” Lynk Labs asserts the government and Samsung Electronics “have no answer to the century of authority defining prior-art ‘printed publication.'” Lynk Labs also contends “Congress adopted that settled judicial construction when it reenacted the same language in §311(b).” Furthermore, Lynk Labs argues, while the government and Samsung Electronics rely on “agency practice,” “agency interpretations receive no deference.” Lynk Labs asserts that “long-settled judicial construction of prior-art ‘printed publication,’ must control.”

Amicus Briefs

Since our last update, six amicus briefs have been filed in King v. United States, a takings case. The petition asked the Court to review the following question:

  • “Under the Takings Clause, does a per se rule apply when a government authorizes one private party to appropriate another party’s vested right to payment of money?”’

The amicus briefs, all of which support the petitioner, were filed by the following:

Denials

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