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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 have posted our argument recap. As for pending petitions, since our last update, two new petitions were filed; three waivers of the right to respond to petitions were filed; four briefs in opposition were filed; two reply briefs were filed; and the Supreme Court denied a petition. Here are the details.

Pending Cases

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

Bolanos-Reynoso v. Department of Agriculture

In this case, Bolanos-Reynoso filed a petition asking the Court to review the following question:

  1. “Whether a federal civilian employee who makes a timely and valid disclosure premised on both categories enumerated in 5 U.S.C. § 2302(b)(8) is entitled to a Merit Systems Protection Board decision on both categories.”

Doe v. Kennedy

In this pro se case, Doe filed a petition asking the Court to review two questions.

Waivers of the Right to Respond

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

Briefs in Opposition

Since our last update, briefs in opposition were filed in four cases.

Finesse Wireless LLC v. AT&T Mobility LLC

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

  • “Whether a purported inconsistency in the testimony of an expert witness is an issue of credibility for the jury to resolve, as every regional circuit holds, or whether it instead supplies a basis for a judgment as a matter of law, as the Federal Circuit held below and routinely holds in other cases.”

Now, in its brief in opposition, AT&T argues the “petition does not merely fail to present any issue warranting review.” According to AT&T, “[i]t fails even to present the question on which petitioner seeks review.” AT&T explains the petition “attacks an alternative holding without addressing the primary (case-specific) rationale that independently supports the judgment.”

Operating Engineers Trust Fund of Washington, D.C. v. United States

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

  • “Whether the ACA’s requirement that group health plans contribute billions of dollars to subsidize reinsurance for third parties was a taking of the plans’ private property. “

Now, in its brief in opposition, the United States argues “the Just Compensation Clause plainly does not encompass all mandatory payments to the government or to fund government programs.” The United States further contends that, under the Supreme Court’s “precedents, a payment obligation generally does not constitute a taking unless the obligation at least targets a specific, identified fund of money.”

Dolby Laboratories Licensing Corp. v. Unified Patents, LLC

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

  1. “Whether a patent owner is injured by the Patent Trial and Appeal Board’s refusal to require a petition to identify all real parties in interest.”
  2. “Whether [35 U.S.C.] § 314(d) bars judicial review of a final decision regarding real parties in interest.”

Now, in its brief in opposition, Unified Patent argues that, “beyond a conclusory assertion that the Federal Circuit’s decision ‘conflicts with this Court’s precedent interpreting § 314(d),’ . . . the Petition cannot identify what that conflict actually is—or why this Court should intervene.”

Hyatt v. Squires

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

  • “Whether the PTO may invoke the equitable doctrine of ‘prosecution laches’ to deny a patent to an applicant who has complied with all the Patent Act’s timeliness provisions.”

Now, in its brief in opposition, the government argues that, “while petitioner contends that prosecution laches is frequently invoked, he cites no case in which the Federal Circuit has relied on the doctrine to bar a patent application that was filed after the effective date” of the amendment in 1995 to the patent statute to change the expiration date of patents. As a result, the government says, “[t]here is consequently no sound basis for petitioner’s assertion.”

Reply Briefs

Since our last update, reply briefs in support of petitions were filed in two cases.

Siples v. Collins

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

  • “To establish ‘clear and unmistakable error’ based on legal error, must a veteran show that there was an error of law at the time of the challenged decision which undebatably altered the outcome of the benefits decision, as the regulatory text provides, or must a veteran also show that the meaning of the law itself was undebatable, as the Federal Circuit held?”

Interesting, despite more than one extension of time, the docket does not include a brief in opposition from the government.

Now, in his reply brief, however, Siples asserts the “government hinges its defense of the Federal Circuit almost entirely on its strained interpretations of pre-codification Veterans Court cases.” According to Siples, “the Federal Circuit went far beyond” the Supreme Court’s reasoning in its precedent, “demanding that CUE claimants not only demonstrate legal error based on the law as it existed at the time of the original decision, but also demonstrate that the meaning of that existing law was not subject to reasonable dispute.”

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 [of the Trade Act of 1974] 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 brief in opposition filed by United States argued the 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 Industries asserts “the government cannot escape the ordinary
meaning of ‘modify’—a term twice confirmed by” the Supreme Court “to exclude ‘extensive’ changes.” According to HMTX, moreover, the “Court’s precedents resolve the question presented as a matter of ‘ordinary’ statutory interpretation.”

Denials

Since our last update, the Supreme Court denied petition in the following case: