Featured / FedCircuitBlog / Supreme Court Activity
on

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 five amicus briefs supporting the petitioner in a patent case were filed. As for pending petitions, since our last update, three new petitions were filed in a trade case and two pro se cases; an amicus brief supporting the petitioner in a patent case was filed; and the Supreme Court denied petitions in a takings case and a pro se case. Here are the details.

Pending Cases

Since our last update, five amicus briefs were filed in Hikma Pharmaceuticals USA Inc. v. Amarin Pharma, Inc., a patent case. As a reminder, the petition presented the Court with the following questions:

  1. “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?”
  2. “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?”

All five amicus briefs support the petitioner:

  1. The amicus brief filed by Shashank Upadhye argues a “skinny label, generic designation, or therapeutic equivalence rating, each contemplated or required by statute and regulation, does not itself demonstrate specific intent to cause infringement.” Upadhye also argues “[c]onclusory allegations that lawful labeling or regulatory communications somehow ‘encouraged’ infringement cannot suffice.”
  2. The amicus brief filed by the United States argues the “complaint does not plausibly allege active inducement of patent infringement,” such that “the court of appeals erred in allowing this suit to proceed.”
  3. The amicus brief filed by Public Citizen argues the “Federal Circuit’s holdings are impossible to square with the Hatch-Waxman Amendments’ language, structure, and context.”
  4. The amicus brief filed by the Association for Accessible Medicines argues that, “under a correct understanding of the [Hatch-Waxman Act] Section viii framework and the generic market, none of the [complaint’s allegations] states a plausible claim for actively inducing doctors to infringe Amarin’s specific method-of-treatment patent.”
  5. The amicus brief filed by Former Congressman Henry A. Waxman argues the Federal Circuit’s decision “undermines the section viii pathway and seriously undercut[s] the availability of generic drugs.” It does so, Waxman says, “by allowing brand companies to sue for induced patent infringement” when the generic manufacturer “has matched the brand’s label except for the carved-out indication, has identified its product a ‘generic version’ and has cited public information about the branded drug’s sales.”

Pending Petitions

New Petitions

Since our last update, three new petitions have been filed in cases decided by the Federal Circuit.

In HMTX Industries, LLC v. United States, a trade case, HMTX Industries filed a petition asking the Court to consider the following question:

  • “Whether [United States Trade Representative’s] streamlined authority under Section 307 [of the Trade Act of 1974] to ‘modify’ an existing tariff action confers on the agency essentially unlimited power to expand the scope of that initial action, as reflected in the ten-fold expansion challenged here.”

In Jackson v. Department of Homeland Security, a pro se case, Richard C. Jackson filed a petition asking the Court to review the following question:

  • “Whether the Merit Systems Protection Board and the Federal Circuit erred in denying equitable tolling under the Veterans Employment Opportunities Act where the agency’s failure to respond to Freedom of Information Act requests concealed evidence of its violation, thereby preventing the petitioner from effectively pursuing his claim in violation of his right to due process.”

In Butler v. Merit Systems Protection Board, a pro se party filed a petition.

Amicus Brief

Since our last update, the American Intellectual Property Law Association filed an amicus brief supporting the petitioner in United Services Automobile Association v. PNC Bank N.A., a patent case. As a reminder, the petition presented the following questions:

  1. “Whether the Federal Circuit has wrongly held that, as a matter of law, a computer-implemented technological invention is patent-eligible only if it claims improvements to computer functionality itself.”
  2. “Whether the Federal Circuit has wrongly extended the prohibition on patenting an ‘abstract idea’—such as mathematical formulae, fundamental economic practices, or methods of organizing human activity—to also prohibit patenting concrete technological processes.”

In its amicus brief, the AIPLA contends this case provides the Court an opportunity “for a course correction of the unpredictable and overly expansive application of the judicial exceptions to the categories of patent-eligible subject matter.” The AIPLA asserts that jurisprudence surrounding the “abstract idea” exception is “malleable, subjective, and [has become an] unpredictable search for an ‘inventive concept.'” In particular, the AIPLA argues, the “Federal Circuit has struggled” to “apply the abstract idea exception.” According to the AIPLA, moreover, the Federal Circuit has “conflated the eligibility analysis” with patentability requirements and “expanded the scope of ineligibility under the abstract idea exception.”

Denials

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