Petitions / Supreme Court Activity
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Here is an update on activity at the Supreme Court in cases decided by the Federal Circuit. With respect to granted cases, there is no new activity to report. While no new petitions were filed, a waiver of the right to respond was filed in a patent case raising questions related to Judge Newman’s removal from her duties, Rule 12(d) of the Federal Rules of Civil Procedure, and the judicial exception to patentability for abstract ideas. The Court also received one new reply brief in support of a petition filed in another patent case raising a question related to standing. In addition, the Court denied petitions in two pro se cases. Here are the details.

Granted Cases

There is no new activity to report.

Petition Cases

Waiver of the Right to Respond

A waiver of the right to respond was filed in Miller Mendel, Inc. v. City of Anna, a patent case presenting the following questions:

  1. “Whether the Federal Circuit in removing a duly appointed Article III judge from judicial duties for her refusal to submit to a mental health evaluation usurped the exclusive constitutional authority vested in Congress by the United States Constitution, which provides that federal judges may only be removed through the impeachment process, and if so, whether such an act undermines the impartiality and integrity of patent appeals adjudication by depriving the patent owner of a fair hearing before a duly constituted appellate panel?”
  2. “Whether the Federal Circuit erred, contrary to this Court’s precedent in Carter v. Stanton, 405 U.S. 669, 92 S. Ct. 1232, 31 L. Ed. 2d 569 (1972), and deepening a recognized split among the circuits, by allowing the lower court to circumvent the requirements of Rule 12(d) of the Federal Rules of Civil Procedure, which mandates that when matters outside the pleadings are presented in a motion to dismiss, the motion must be treated as one for summary judgment, thereby providing the plaintiff a fair opportunity to present responsive evidence and engage in the summary judgment process?”
  3. “Whether the current judicial exception to patentability for abstract ideas for Section 101 of the criteria, allows courts to invalidate patents arbitrarily without factual development or evidentiary support, thus undermining the predictability and stability necessary for the patent system to function effectively?”
  4. “Whether the Court should eliminate the judicial exception to patentability for abstract ideas given that it does not enjoy the historical provenance of the other, much older judicial exceptions, is in derogation of the 1952 Patent Act, has never been defined nor objective criteria provided, and has created great uncertainty and chaos in the courts, at the United States Patent and Trademark Office, and among patent owners and the business community?”

New Reply

In Zebra Technologies Corporation v. Intellectual Tech LLC, another patent case, Zebra Technologies filed its reply brief in support of its petition. The petition presented the following question:

  • “Whether a party has Article III standing to assert a claim for patent infringement against an accused infringer who has the ability to obtain a license from a third party.”

In its response brief, Intellectual Tech argued that “[n]either this Court nor the Federal Circuit has ever held that a patent owner loses Article III standing to enforce its own patent” because a third party could “grant a license to the defendant.” According to Intellectual Tech, “[p]atent owners have Article III standing even when a third party has a ‘virtually unfettered right to sublicense’ the patent in suit.” Additionally, it contended, “there are antecedent questions the Court must decide before reaching the primary question presented.” For example, it argued the “Court must first determine whether Main Street [the third party in question] has an independent right to grant Zebra a license before deciding whether that right deprives IT of Article III standing.” According to Intellectual Tech, “Main Street has an unfettered right to license and/or assign the [relevant] patent in IT’s name,” meaning that “Main Street . . . does not have an independent right to license or assign the [relevant] patent to Zebra.” Intellectual Tech asserted “Zebra thus had no ability to obtain a license from anyone other than IT, and IT thus never lost Article III standing.”

Now, in its reply, Zebra Technologies argues that Intellectual Tech “misreads the cases on which it relies,” and anyway they are “from the era when the Federal Circuit erroneously conflated Article III standing with the right to sue under the statute.” Indeed, Zebra Technologies asserts, Intellectual Tech’s cases “neither cite Article III nor discuss the requirements for constitutional standing.” According to Zebra Technologies, moreover, “clarity on this issue can only come from this Court,” because “the Federal Circuit is constrained by its precedent and its past confusion between Article III standing and the statutory right to sue.” Zebra Technologies further contends that “different tests for Article III standing apply depending on whether the plaintiff is a licensee or owner.”

Denials

The Supreme Court denied certiorari in the following cases: