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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, we are waiting for the Court to issue its decision. As for pending petitions, since our last update, two new petitions were filed in a patent case and a pro se case; two waivers of the right to respond to petitions were filed in a patent case and a pro se case; one reply brief was filed in a trade case; seven amicus briefs were filed in a patent case; and the Supreme Court denied three petitions in a takings case, a veterans case, and a pro se case. Here are the details.

Pending Cases

In the only pending case, Hikma Pharmaceuticals USA Inc. v. Amarin Pharma, Inc., which addresses inducement of infringement and so-called skinny-labeling, we are currently waiting for the Supreme Court to issue its decision.

Pending Petitions

New Petitions

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

Ortiz & Associates Consulting, LLC v. Vizio, Inc.

In this patent case, Ortiz & Associates Consulting filed a petition asking the Court to review the following questions:

  1. “Whether a non-practicing patent owner that does not manufacture or sell any patented article, and has not granted any ongoing license authorizing third parties to do so, has any obligation under 35 U.S.C. § 287(a) to ensure that unrelated third-party products are marked with patent notice, or to plead compliance with § 287(a) in its complaint.”
  2. “Whether a patent owner’s textually grounded and precedent-based legal position on an unresolved question of statutory interpretation—specifically, whether this Court’s decisions in Wine Railway Appliance Co. v. Enterprise Railway Equipment Co., 297 U.S. 387 (1936), and Dunlap v. Schofield, 152 U.S. 244 (1894), exempt non-practicing entities from § 287(a)’s marking requirements—can properly support a finding that the case is ‘exceptional’ under 35 U.S.C. § 285 and Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545 (2014), thereby authorizing mandatory attorney fee awards against the patent owner.”
  3. “Whether the First Amendment and this Court’s sham-litigation doctrine impose a categorical prohibition on courts using settlement offers—including offers below the cost of defense or labeled ‘nuisance value’—as evidence supporting fee-shifting under 35 U.S.C. § 285, absent a finding that the underlying litigation is both objectively baseless and subjectively brought in bad faith under Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., 508 U.S. 49 (1993).”

Farley v. Merit Systems Protection Board

In this pro se case, Farley filed a petition asking the Court to review the following questions:

  1. “Whether attorney withdrawal that violates modern ethical standards—specifically the duties articulated in ABA Formal Opinion 516—can constitute an ‘extraordinary circumstance’ warranting equitable tolling under Irwin v. Department of Veterans Affairs, 498 U.S. 89 (1990), and Holland v. Florida, 560 U.S. 631 (2010).”
  2. “Whether the Federal Circuit erred by affirming the MSPB’s refusal to apply equitable tolling based on a factual premise contradicted by the record, where the petitioner worked continuously and diligently after counsel’s last-minute withdrawal.”
  3. “Whether the longstanding rule that ‘clients are responsible for their attorneys’ errors’ should apply when the attorney’s withdrawal is professionally improper under contemporary ethical standards and occurs at the eve of a jurisdictional deadline.”

Waivers of the Right to Respond

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

Reply Briefs

Since our last update, one reply brief in support of a petition was filed.

HMTX Industries, LLC v. United States

As a reminder, the petition in this case presented the following question:

  • “Whether USTR’s streamlined authority under Section 307 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.”

The government’s brief in opposition argued the term “modify” “can be read to encompass larger changes or alterations, as long as they are not radically transformative.” According to the United States, moreover, “Congress’s inclusion of ‘elimination’ in the definition of ‘modification’ necessarily precludes petitioners’ narrower reading because completely eliminating a previously imposed duty obviously goes far beyond just an ‘increment[al]’ or ‘minor’ alteration to that duty.”

Now, in its reply brief, HMTX asserts “the government cannot escape the ordinary meaning of ‘modify’—a term twice confirmed by this Court to exclude ‘extensive’ changes.” According to HMTX, “the government cannot reconcile its interpretation of Section 307 with what this Court three months ago observed Congress has never done: Delegate ‘the extraordinary power to unilaterally impose tariffs of unlimited amount, duration, and scope.'”

Amicus Briefs

Since our last update several amicus briefs were filed.

Google LLC v. VirtaMove, Corp.

As a reminder, the petition in this case presented the following questions:

  1. “Whether the PTO lacks statutory authority to deny institution based on ‘settled expectations’ where the patent statutes allow for administrative review at any time during the life of a patent.”
  2. “Whether courts have power to review a PTO decision denying inter partes review on grounds that are contrary to statute.”

Six amicus briefs supporting the petitioner and one in support of granting certiorari were filed.

In its amicus brief, US*Made, the Alliance for Automotive Innovation, the High Tech Inventors Alliance, the Computer & Communications Industry Association, The Software & Information Industry Association, and National Retail Federation argued the “USPTO makes a breathtaking claim of authority: that it can literally rewrite the terms of its enabling statute.”

In their amicus brief, 35 intellectual property law professors suggest that, “[t]hrough their application of the ‘settled expectations’ and summary denial policies, the Interim Director and Director of the U.S. Patent and Trademark Office . . . have exceeded their statutory authority and are substituting their personal animosity toward inter partes review . . . for the text of the Patent Act and congressional intent.”

In its amicus brief, Unified Patents, LLC contended that, “[a]s the law currently stands, the PTO can exceed its statutory authority and no court can do anything about it.”

In its amicus brief, Askeladden L.L.C. argued the PTO used “administrative fiat” to “impose[] a presumptive rule that a patent’s six-year age endows its owner with ‘settled expectations’ that shield the patent from inter partes review.” According to Askeladden, this “extra-statutory time bar directly overrides the express statutory timeline enacted by Congress.”

In its amicus brief, The Association for Accessible Medicines maintained the “importance of this issue reaches far beyond this case, as discretionary denials have become the dominant mechanism by which the USPTO prevents review of meritorious IPR petitions while simultaneously shielding its decisions from judicial review.”

In its amicus brief, The PTAB Bar Association argued the USPTO’s “new quasi-statute of limitations is an unauthorized rewriting of the AIA, which contradicts the statute’s text, subverts its purpose, violates the Constitution, inflicts documented harm on American innovation and commerce, and, under the Federal Circuit’s unreviewability ruling, escapes all judicial review.”

In its amicus brief, the Association for Competitive Technology (ACT) contended the “PTO’s ‘settled expectations’ policy directly harms small businesses that rely on IPR as a vital shield against abusive patent assertions.”

Denials

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