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Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. In the only pending case, a patent case addressing inducement of infringement and so-called skinny-labeling, the respondent’s merits brief was filed. As for pending petitions, since our last update, two new petitions were filed in a patent case and a pro se case; a waiver of the right to respond to a petition was filed in another pro se case; and the Supreme Court denied petitions in a case addressing sanctions and two pro se cases. Here are the details.

Pending Cases

Since our last update, the respondent’s merits brief was filed in Hikma Pharmaceuticals USA Inc. v. Amarin Pharma, Inc., the only currently pending case previously decided by the Federal Circuit. As a reminder, the petition presented the Court with 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, in its brief, Amarin Pharma argues Congress adopted the Hatch-Waxman Act as a “compromise between expanding the availability of generic pharmaceuticals and preserving the intellectual-property rights necessary to encourage innovation.” According to Amarin Pharma, however, Congress did not intend “to expand generic manufacturers’ market access by all-but immunizing them against patent-infringement liability when using ‘skinny label’ products.” Moreover, Amarin Pharma contends, the “petitioners told the world that their drug can be prescribed for a therapeutic category that infringes respondents’ patents.” Amarin Pharma asserts the “Court should not make new law to excuse petitioners’ improper advertising, contrary to Congress’s careful incentive structure for finding new treatments.”

Pending Petitions

New Petitions

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

In CPC Patent Technologies Pty Ltd. v. Apple Inc., CPC Patent Technologies filed a petition asking the Court to review the following question:

  • “Whether the Federal Circuit can affirm a PTAB decision without in contravention of the clear statutory requirement of an ‘opinion’ when reviewing such decision.”

In Winfrey v. Department of Commerce, a pro se party filed a petition as well.

Waivers of the Right to Respond

Since our last update, a waiver of the right to respond to a petition was filed in Jackson v. Department of Homeland Security, a pro se case.

Denials

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