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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, seven amicus briefs were filed supporting the respondent. As for pending petitions, since our last update, five new petitions were filed in a patent case, another patent case addressing sanctions, a veterans disability benefits case, a government contracts case, and a pro se case; three waivers of the right to respond to petitions were filed in a patent case and two pro se cases; a reply brief was filed in trademark case; two amicus briefs were filed in a patent case and Trade Act case; and the Supreme Court denied petitions in a patent case and two pro se cases. Here are the details.

Pending Cases

Since our last update, seven amicus briefs have been 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?”

Each of the seven amicus briefs supports the respondents and were filed by the following parties:

    Pending Petitions

    New Petitions

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

    Rideshare Displays, Inc. v. Lyft, Inc.

    In this patent case, Rideshare Displays filed a petition asking the Court to review the following questions:

    1. “Whether the Federal Circuit has wrongly applied this Court’s and its own precedent in disregarding key functional limitations of the claims that implement the improvement to the claimed invention over the prior art in conducting a patent eligibility analysis under 35 U.S.C. §101.”
    2. “Whether the Federal Circuit has wrongly usurped the factfinder role and disregarded the requirement to review the Patent Trial and Appeal Board’s factual findings on written description for substantial evidence by sua sponte raising and ruling on a new argument at the appellate hearing that was not raised below and overrule the Board without the Patent Owner or Board ever having an opportunity to address it.”

    EscapeX IP, LLC v. Google LLC

    In this patent case addressing sanctions, EscapeX IP filed a petition asking the Court to review the following questions:

    1. “Whether, in a case arising from the Ninth Circuit, a federal court of appeals may affirm sanctions under 28 U.S.C. § 1927 based on an ‘objective’ recklessness standard and without an express finding of subjective bad faith, notwithstanding Ninth Circuit precedent requiring such a finding.”
    2. “Whether an attorney’s good faith effort to challenge a fee award by filing a Rule 59(e) motion supported by client declarations not previously considered by the district court constitutes ‘vexatious’ multiplication of proceedings sanctionable under 28 U.S.C. § 1927, in a manner that chills counsel’s willingness to defend clients against fee awards.”

    Steele v. Collins

    In this veterans disability benefits case, Kevin Steele filed a petition asking the Court to review the following question:

    • “Under the statutory and regulatory notice requirements governing VA decisions since 1990, is the VA permitted to retroactively deem a claim ‘implicitly denied’ when the agency never issued a notice explicitly setting forth the claim at issue or the reason for its denial?”

    United States v. Cotter Corp.

    In this government contracts case, the United States filed a petition asking the Court to review the following question:

    • “Whether a downstream purchaser’s liability for mishandling nuclear material that the purchaser obtained for private benefit, but that was originally produced more than a decade earlier under a government contract with another party, is subject to indemnification by the United States under the original government contract because it qualifies as ‘public liability arising out of or in connection with the contractual activity’ under 42 U.S.C. 2210(d).”

    Faris v. Merit Systems Protection Board

    In this pro se case, Andrew D. Faris filed a petition asking the Court to review the following questions:

    1. “Whether the Due Process Clause permits a federal agency and the Merit Systems Protection Board to enforce a last-chance agreement as a jurisdiction-stripping waiver of statutory MSPB appeal rights where a preference-eligible veteran, proceeding pro se, executed the purported waiver before receiving any notice that MSPB appeal rights existed, and the agency first provided written notice of those rights only later in the removal decision letter.”
    2. “Whether a court of appeals may enforce a last-chance agreement as a jurisdiction-stripping waiver of MSPB and judicial-review rights while invoking strict issue-preservation rules to refuse review of a pro se employee’s constitutional objection that the waiver was uninformed, thereby leaving the employee with no forum for merits review of a covered removal.”
    3. “Whether due process permits removal and enforcement of a jurisdiction stripping waiver where the predicate AWOL charge is stated in a time increment that does not exist in the Postal Service’s own time-conversion framework, and neither the MSPB nor the Federal Circuit made findings reconciling that discrepancy with the governing rules.”

    Waivers of the Right to Respond

    Since our last update, waivers of the right to respond to petitions have been filed in the following cases:

    Reply Briefs

    Since our last update, a reply brief was filed by the petitioner in Curtin v. United Trademark Holdings, Inc., a trademark case. As a reminder, the petition presented the following question:

    • “Whether a party desiring to participate in an administrative agency proceeding, including a trademark opposition proceeding at the United States Patent and Trademark Office, must satisfy the zone-of-interests and proximate-causation tests set forth in Lexmark International, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014), for causes of action in federal court.”

    Now, in its reply brief, Curtin asserts the Supreme Court “has long held that the standards applicable to administrative agencies and federal courts differ.” Curtin argues the “Federal Circuit has disregarded that admonishment by imposing doctrines restricting access to federal courts, such as the zone-of-interests test, on administrative trademark opposition proceedings.” Moreover, according to Curtin, the underlying decision by the Federal Circuit conflicts with the Supreme Court’s decisions and those of “the Third, Fifth, and D.C. Circuits, which hold that such restrictions do not apply to administrative agencies.” Curtin asserts the respondent applied “the zone-of-interests and proximate-causation tests” and insisted these tests are necessary. Curtin, however, contends the relevant precedent “say[s] nothing about administrative proceedings.”

    Amicus Briefs

    Since our last update, two amicus briefs were filed in a patent case and case addressing the Trade Act of 1974.

    Dolby Laboratories Licensing Corp. v. Unified Patents, LLC

    In this patent case, an amicus brief was filed by the Alliance of U.S. Startups & Inventors for Jobs supporting the petitioner. As a reminder, the petition presented 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 § 314(d) bars judicial review of a final decision regarding real parties in interest.”

    In its amicus brief, the USIJ argues the Federal Circuit’s decision “in this case is flawed in two respects.” First, the USIJ contends, neither the “Federal Circuit nor the [Patent Trial and Appeal Board] should be allowed to ignore a statutory provision that is both unambiguous and clearly applicable and that was intentionally crafted for the protection of the patent owner.” Second, the USIJ asserts, “the patent owner here is entitled to an identification of other entities, in addition to the surrogate petitioner Unified Patents, that are estopped from challenging the validity of its patent.” USIJ argues blocking “a patent owner from information as to the real party or parties in interest . . . , in and of itself, is sufficient injury to support a review by the court.”

    HMTX Industries, LLC v. United States

    In this trade case, the American Apparel & Footwear Association filed an amicus brief supporting the petitioner. As a reminder, the petition asked 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 its amicus brief, the American Apparel & Footwear Association maintains that, when “Congress has delegated its tariff powers, it has done so in confined situations, subject to strict constraints.” The Association argues the “United States Trade Representative sought to evade these congressionally imposed limits, and the Federal Circuit allowed it to do so.” According to the Association, the “USTR far exceeded the modest authority Congress granted it under Section 307.” The Association contends Section 301 “does not authorize USTR to impose massive new tariffs while skipping over Section 301’s robust procedural requirements.” Moreover, the Association asserts, if “Congress had meant to delegate to USTR such unbounded power in Section 307, it would have done so clearly.” Lastly, the Association argues, the “Executive should not be permitted to exercise such an extraordinary delegation of Congress’s core taxation authority without this Court’s review.”

    Denials

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