Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. There are currently no cases pending before the Supreme Court that were previously decided by the Federal Circuit. As for pending petitions, since our last update, three new petitions were filed in two patent cases and a pro se case, and two briefs in opposition were filed in a government contract case and a patent case. Here are the details.
New Petitions
Since our last update, three new petitions have been filed in cases decided by the Federal Circuit.
Apple Inc. v. International Trade Commission
In this patent case, Apple filed a petition asking the Court to review the following questions:
- “Whether a patentee fails to establish ‘significant employment of labor or capital’ ‘with respect to the articles protected by the patent’ under 19 U.S.C. §1337(a)(3)(B) where the patentee’s investment falls into one of three uses listed only in §1337(a)(3)(C).”
- “Whether the Federal Circuit’s affirmance of an agency decision where (1) the court’s rationale does not appear in the agency’s opinion and (2) the agency’s result was not required by law is contrary to SEC v. Chenery Corp., 318 U.S. 80 (1943), and its progeny.”
Innovaport LLC v. Target Corp.
In this patent case, Innovaport filed a petition asking the Court to review the following questions:
- “Whether a court can disregard the USPTO’s eligibility findings under 35 U.S.C. § 101?”
- “Whether a court may disregard preemption considerations when evaluating patent eligibility under 35 U.S.C. § 101?”
- “Whether a computer-related invention can be patent eligible when directed toward a useful, practical application even if the invention does not change or improve computer technology, computer capabilities, or computer functionality?”
- “Whether a court may make factual findings on a motion for summary judgment regarding conventionality of recited claim limitations under Alice without supporting evidence in the record?”
Cantu v. Collins
In this pro se case, Cantu filed a petition asking the Court to review three questions.
Briefs in Opposition
Since our last update, two briefs in opposition were filed.
ASG Solutions Corp. v. United States
As a reminder, the petition in this government contract case presented the following questions:
- “Whether the government must prove that a contracting officer exercised independent, contemporaneous discretion prior to T4D, or whether a T4D remains valid when the evidentiary record contains zero evidence that the contracting officer exercised any independent business discretion, so long as an underlying breach occurred.”
- “Whether the government may satisfy its burden to prove the contemporaneous exercise of administrative discretion by relying solely on an unauthenticated memorandum that appears fraudulent on its face and is admitted ‘not for the truth of its contents.’”
Now, in its brief in opposition, the United States contends the “lower courts here properly applied the [Contract Disputes Act of 1978]’s de novo review standard and determined that adequate cause for terminating the contract for default existed at the time the contracting officer made the decision.” Furthermore, the United States claims, “[r]eview is . . . unwarranted because the record shows that the contracting officer did consider the [Federal Acquisition Regulation] factors that petitioner invokes.”
Google LLC v. VirtaMove, Corp.
As a reminder, the petition in this case presented the following questions:
- “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.”
- “Whether courts have power to review a PTO decision denying inter partes review on grounds that are contrary to statute.”
Now, in its brief in opposition, the government argues the Federal Circuit “correctly held that petitioner was not entitled to mandamus relief” because “petitioner does not satisfy any of the three prerequisites to mandamus relief.” Furthermore, the government contends, “given the absence of any statutory language that even arguably precludes the Director from considering patent age in making a discretionary institution decision, there is no reason to suppose that the question presented will ever warrant this Court’s review.”