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Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. With respect to granted cases, there is no new activity to report. With respect to petitions, six new petitions were filed in two patent cases, a trade case, and three pro se cases. The Court also received waivers of the right to respond in two pro se cases, a brief in opposition in a veterans case, two replies in support of petitions in a patent case and a veterans case, and an amicus brief in a patent case. In addition, the Court denied petitions in two patent cases and a pro se case. Here are the details.

Granted Cases

There is no new activity to report.

Petition Cases

New Petitions

In DISH Network L.L.C. v. Dragon Intellectual Property, LLC, a patent case, DISH Network asked the Court to review the following questions:

  1. “Whether the Patent Act’s fee-shifting statute allows a district court discretion to impose joint and several liability for the fee award on a party’s attorney whose actions substantially contribute to the exceptionality of the case.”
  2. “Whether the same fee-shifting statute allows a district court discretion to award attorney’s fees incurred by a prevailing accused infringer in a parallel administrative proceeding to invalidate a patent.”

In Provisur Technologies, Inc. v. Weber, Inc., another patent case, Provisur Technologies asked the Court to review the following questions:

  1. “Whether the Federal Circuit applied an incorrect standard of review for appeals of a Judgment as a Matter of Law (JMOL) and, as a result, improperly assumed the role of factfinder in overturning a jury verdict of willful patent infringement?”
  2. “Whether the Seventh Amendment permits the Federal Circuit to reexamine a jury’s factual findings and credibility determinations in reaching a verdict of willful patent infringement?”

In Saha Thai Steel Pipe PCL v. Wheatland Tube Co., a trade case, Saha Thai Steel Pipe asked the Court to review the following questions:

  1. “Did the court below err by deferring to Commerce, rather than ascertaining for itself, whether the Commission had made the requisite material injury determination?”
  2. “May Commerce use scope rulings to assess antidumping duties on merchandise for which the Commission did not investigate material injury?”

In Arunachalam v. International Business Machines Corp., a pro se case, Arunachalam asked the Court to review the following questions:

  1. “Can a Judge with stock issue a binding order in favor of the stock-issuing party?”
  2. “Can a Judge rule on an appeal from the decision of a case or issue tried by him?”
  3. “Can a Judge arbitrarily restrict a citizen’s right to appeal and the inventor’s right to sue while denying the citizen’s right to be heard and to an unbiased tribunal?”
  4. “Should a Judge disqualify himself in any proceeding in which his impartiality might reasonably be questioned?”
  5. “Can a Judge deny or hinder access to the courts to a citizen upon the question of due process itself?”
  6. “Can a judge arbitrarily deprive a citizen of liberty and property, from void orders by a judge with disqualifying financial interests, with no jury trial, hearing, notice of hearing, discovery, evidence nor basis in fact or the law?”

In Bowden v. Office of Personnel Management, another pro se case, Bowden asked the Court to review the following questions:

  1. “Was [the United States Court of Appeals for the Federal Circuit] opinion to confirm the Merit System Protection Board (MSPB) decision in the Bowden v. [Office of Personnel Management] case discrimination against a person with a disability?”
  2. “Was Mr. Bowden taken advantage of due to his mental disability by [the United States Court of Appeals for the Federal Circuit] by his arguments being disregarded and ruled as being non[-]persuasive?”
  3. Was Mr. Bowden given any accommodations due to his mental and physical disabilit[ies] cause[d] by federal on-the-job injuries?”

In Kimble-Davis v. Office of Personnel Management, another pro se case, Kimble-Davis asked the Court to review the following questions:

  1. “Whether an agency/court can determine an individual is not a designated beneficiary without providing the claimed beneficiary with the appropriate documentation?”
  2. “Whether [the Office of Personnel Management] should have determined an individual was the designated beneficiary where evidence was submitted which illustrated the individual was designated as a beneficiary?”

Waivers of the Right to Respond

Waivers of the right to respond were filed in two cases:

Brief in Opposition

In Frantzis v. McDonough, a veterans case, the government filed its brief in opposition to the petition. The petition presented the following question:

  • “[W]hether, at least where the Board’s denial of a veteran’s claim is grounded in a credibility determination, the governing federal statutes or the Due Process Clause require that the Board member who conducts the hearing must be the same Board member who makes a credibility determination regarding the veteran’s testimony.”

Now, in response, the government argues that Congress removed “the requirement petitioner advocates” from 38 U.S.C. § 7107(c) in 2017 and that 38 U.S.C. § “7102(a) does not maintain the same-member requirement in effect.” According to the government, “nothing in the text [of § 7102(a)] prohibits reassignment, and once a proceeding is reassigned, it is the member or panel who is currently assigned to the proceeding who ‘shall make’ the necessary determinations.” Further, it asserts that the petitioner “does not cite any decision holding that [there is] a Due Process Clause right to have a hearing conducted by the same adjudicator who issues the final decision.”

New Replies

New replies supporting petitions were filed in two cases.

In Edwards Lifesciences Corp. v. Meril Life Sciences Pvt., a patent case, Edwards Lifesciences filed its reply brief in support of its petition. The petition presented the following question:

  • “Whether, under Hatch-Waxman’s safe harbor, an infringing act is ‘solely for uses reasonably related’ to the federal regulatory process, when the infringing act is performed for both regulatory and non-regulatory uses.”

In its response brief, Meril Life Sciences argued that “this case does not merit review by the Court” because it “does not involve even de minimis harm to any party.” Additionally, it contended, the petition is based on the position of “a single dissenting judge.” Moreover, Meril Life Sciences continues, the petitioner “asks this Court to overturn over 30 years of safe harbor precedent . . . because that precedent allegedly reads ‘solely’ out of [35 U.S.C. § 271(e)(1)] and immunizes commercial ‘alternative’ uses.” According to Meril Life Sciences, however, the Federal Circuit’s “analysis does not ignore the word ‘solely,’ let alone read it out of the statute.” It further asserted the Federal Circuit “is clear that ‘each act’ or use must be analyzed separately to determine if it is reasonably related to regulatory approval,” meaning that it has not “ignored commercial ‘alternative’ uses.”

Now, in its reply, Edwards Lifesciences argues that Meril Life Sciences “cannot explain what work ‘solely’ does” and that, under Meril’s reading, 35 U.S.C. § “271(e)(1) means the same thing with or without the term—the very definition of surplusage.” It also argues Meril Life Sciences tried “rewriting the decision, insisting the Federal Circuit did not ‘ignor[e] commercial “alternative’ uses”‘ or ‘declar[e]’ those uses ‘irrelevant,'” when “the Federal Circuit held . . . [i]n unequivocal language: ‘alternative uses’ are ‘irrelevant.'” Edwards Lifesciences further asserts that the “issue [of the safe-harbor] was not clearly settled” until “[t]he panel confirmed the Federal Circuit’s atextual construction and broke new ground . . . [,] destabilizing the line between innovation and competition.” As discussed below, the Supreme Court denied the petition in this case.

In Frantzis v. McDonough, the veterans case mentioned above, Frantzis filed his reply brief in support of his petition. Again, the petition presented the following question:

  • “[W]hether, at least where the Board’s denial of a veteran’s claim is grounded in a credibility determination, the governing federal statutes or the Due Process Clause require that the Board member who conducts the hearing must be the same Board member who makes a credibility determination regarding the veteran’s testimony.”

Now, in his reply, Frantzis argues “Congress directed that, once a ‘proceeding’ is ‘assigned’ to an individual . . . or a panel of Board members, that individual or panel must ‘make a determination thereon.'” According to Frantzis, “[t]he ordinary meaning of ‘proceeding’ in the administrative law context encompasses any hearing conducted as part of the proceeding.” Additionally, he contends, because Congress noted that “a proceeding ‘includ[es] any motion,'” the term “‘proceeding’ sweeps in any smaller constituent parts.” Frantzis further asserts that the government “overreads the significance of Congress’s revision of [38 U.S.C. § ] 7017 because . . . Congress also removed the provision explicitly guaranteeing veteran-claimants’ right to a hearing before the Board.” But the government, Frantzis emphasizes, “does not dispute that veteran-claimants still have a right to a hearing.”

Amicus Brief

One new amicus brief was filed in Celanese International Corp. v. International Trade Commission, a patent case presenting the following question:

  • “Whether the sale of an end product made by secret use of a later-patented process places ‘the claimed invention’—that is, the process itself—on sale and thus invalidates the patent on that process, even where the claimed process was not disclosed by the sale and cannot be discovered by studying the end product.”

The National Association of Manufacturers filed the amicus brief in support of the petitioner. In it, NAM asserts “[t]he Federal Circuit’s interpretation” of the changes made to 35 U.S.C. § 102 by the Leahy-Smith America Invents Act “undermines the predictability and global uniformity that Congress intended to create by passing the AIA.” According to this brief, “the Federal Circuit’s decision puts American patent law at odds with many other parts of the world.” The brief also asserts that “[t]he text and legislative history around the passage of the AIA suggests that . . . Congress intended to require disclosure of the claimed invention . . . for the on-sale bar to apply to a process.”

Denials

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