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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, there has been no new activity since our last update. As for pending petitions, since our last update, one new petition was filed in a veterans benefits case; two waivers of the right to respond to petitions were filed in a patent case and a case addressing Federal Circuit Rule 36; a brief in opposition was filed in a government contracts case; and the Supreme Court denied petitions in a patent case, a trademark case, and three pro se cases. Here are the details.

Pending Cases

Since our last update, there is no new activity 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?”

Pending Petitions

New Petitions

Since our last update, a new petition was filed in McKinney v. Collins. In it, Hugh C. McKinney presents the following question:

  • “Whether the Court should overrule Massachusetts v. EPA with respect to the ‘extremely limited’ and ‘highly deferential’ standard of review applied to the denial of a rulemaking petition.”

Waivers of the Right to Respond

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

Brief in Opposition

Since our last update, Cotter Corporation filed its brief in opposition to the petition in United States v. Cotter Corp., a government contracts case. As a reminder, the petition asked 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).”

Now, in its brief in opposition, Cotter argues “[t]his case does not warrant review” because the lower court “appear[s] to be the first to ever consider whether government-contract indemnity . . . extends to so-called ‘downstream purchasers.'” According to Cotter, there “is no reason for this Court to issue only the second ever appellate decision on that issue.” Moreover, Cotter contends, the “unusual legal issue here” is not “outcome dispositive in this case.” Cotter asserts that “[c]oncerns for the nuclear industry’s growth are instead reasons to grant a different petition currently pending before the Court, which presents the antecedent question of when liability attaches for nuclear incidents.” Cotter also claims the Court’s intervention is “unnecessary because the Federal Circuit got the result exactly right, and the government has failed to propose any plausible alternative rule.”

Denials

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