FedCircuitBlog

Today the Federal Circuit issued, but did not publish on its website, two important nonprecedential orders in patent and trademark cases. These orders represent the continuing fall out from the Federal Circuit’s opinion in Arthrex, Inc. v. Smith & Nephew, Inc. that the Secretary of Commerce’s appointment of Administrative Patent Judges to the Patent Trial and Appeal Board violates the Appointments Clause of the U.S. Constitution. Hat tip to Sharon Israel at Shook, Hardy & Bacon L.L.P. for alerting us about these orders.

On Tuesday, the Supreme Court heard oral argument in Romag Fasteners, Inc. v. Fossil, Inc. As we noted in our argument preview, in this case the Court is considering whether, to recover a trademark infringer’s profit, a trademark owner must prove that the infringer infringed willfully. Here is our argument recap.

This morning the Supreme Court denied the petition for certiorari in Athena Diagnostics, Inc. v. Mayo Collaborative Services, LLC, one of the most important patent cases in recent memory. In that case, the petitioner pleaded with the Court to revisit the doctrine of patent eligibility given the uncertainty and incorrect results generated by the Supreme Court’s 2012 decision in Mayo Collaborative Services v. Prometheus Laboratories, Inc., particularly in the area of life sciences technologies. Notably, the Court also denied review in two other cases raising issues related to patent eligibility, Hikma Pharmaceuticals USA Inc. v. Vanda Pharmaceuticals Inc. and HP Inc. v. Berkheimer. We have the details.

To recover a trademark infringer’s profit, must a trademark owner prove that the infringer acted willfully? On Tuesday the Supreme Court will hear oral argument in Romag Fasteners, Inc. v. Fossil, Inc., a case in which the Federal Circuit held that willfulness is a prerequisite to disgorgement of profits in trademark cases. Here is our argument preview.

This morning the Federal Circuit granted en banc rehearing in Sunpreme v. United States, a trade case. The en banc court simultaneously issued a new opinion in the case, vacating the panel’s decision and effectively reversing it in relevant part. We have the details.

This morning the Supreme Court issued its opinion in Peter v. NantKwest, holding that the Patent and Trademark Office does not get to recover the salaries of its attorneys and paralegal employees when a patent applicant files a civil action in the United States District of Virginia to challenge a rejection of its application.

Yesterday the Supreme Court heard oral arguments in Thryv, Inc. v. Click-to-Call Technologies, LP, a case addressing whether a patent owner has the right under the patent statute to appeal a determination by the Patent Trial and Appeal Board that a petition for inter partes review was not filed after a statutory deadline. In short, while Justice Gorsuch appeared to agree with the Federal Circuit’s conclusion that patent owners have that right, several other Justices, and particularly Justice Kagan, seemed to harbor significant doubt that Congress had not eliminated the ability to appeal in this circumstance.

On Friday the Solicitor General filed amicus briefs requested by the Supreme Court in two patent cases, Hikma Pharmaceuticals USA Inc. v. Vanda Pharmaceuticals Inc. and HP Inc. v. Berkheimer. In both cases, the Solicitor General recommended that the Court deny review. A closer examination of the briefs, however, shows the Solicitor General supporting a reexamination of substantive, if not not procedural, patent eligibility law, at least as expressed by the Supreme Court since Bilski v. Kappos in 2010, and in particular in the currently-pending case Athena Diagnostics, Inc. v. Mayo Collaborative Services, LLC.

The Supreme Court will hear one hour of oral argument tomorrow in three cases challenging the Federal Circuit’s holding that various health insurance companies cannot obtain damages under the Tucker Act for subsidies that were identified in the Affordable Care Act but that Congress later declined to appropriate. The three cases are Maine Community Health Options v. United States, Moda Health Plan Inc. v. United States, and Land of Lincoln Mutual Health Insurance Company v. United States.

Does the patent statute permit patent owners to appeal decisions by the U.S. Patent and Trademark Office’s Patent Trial and Appeal Board that petitions for inter partes review were not filed late? Or, under the statute, are these decisions simply unreviewable? The Supreme Court will tackle these questions on Monday, when it will hear argument in Thryv, Inc. v. Click-To-Call Technologies, LP.