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.
The Federal Circuit issued four opinions today. It issued precedential opinions in a patent case and a veterans case, and nonprecedential opinions in another veterans case and a personnel case.
Notably, the patent case is TCL Communication Technology Holdings Ltd. v. Telefonaktiebolaget LM Ericsson, a case we have been watching because it attracted a significant number of amicus briefs, as discussed previously on this blog. In short, in that case the Federal Circuit agreed with Ericsson that the district court should have held a jury trial on the appropriate “release payment” owed Ericsson for a license to Ericsson’s portfolio of standard-essential patents. By resolving the case in this manner, the court found no need to address the various issues raised in the amicus briefs about the proper calculation of payments for licenses to standard-essential patents.
Here are the introductions to the opinions.
This afternoon the Supreme Court granted the petition for certiorari in Google LLC v. Oracle America, Inc., a copyright case most recently decided by the Federal Circuit in 2018. The grant comes on the heels of the case being listed for consideration at four of the Court’s conferences, including the last three in a row.
It was a busy week at the Supreme Court in cases decided by the Federal Circuit. Three amicus briefs in favor of the respondent were filed in one of the four granted cases, Thryv, Inc. v. Click-to-Call Technologies, LP. With respect to petitions, multiple petitions were denied, two new petitions were filed, several party briefs were filed, and nine amicus briefs were filed in one case, Athena Diagnostics, Inc. v. Mayo Collaborative Services, LLC. We have the details.
Late Breaking Opinion – Secretary of Commerce’s Appointment of PTAB Judges Violates the Constitution
While the Federal Circuit did not issue any opinions this morning, this afternoon (after the time the court typically issues opinions) it issued an important precedential opinion in a patent case, Arthrex, Inc. v. Smith & Nephew, Inc. In this case Arthrex argued that the 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. The Federal Circuit agreed. The court, however, also noted the limited nature of its holding and the limited remedy its holding required.
I’m excited to announce several new ways for you to stay up to date on Federal Circuit cases and news. We have created a daily digest email as well as a presence on various social media platforms. Read on for the details.