FedCircuitBlog

This post summarizes recent activity at the Supreme Court in cases decided by the Federal Circuit.

• The Supreme Court granted certiorari in three related Arthrex cases.
• The following two new petitions for writ of certiorari were submitted to the Supreme Court: (1) Consumer 2.0, Inc. v. Tenant Turner, Inc. and (2) Minerva Surgical, Inc. v. Hologic, Inc.
• Donuts, Inc. filed its brief in opposition with the Court in Whitserve LLC v. Donuts Inc.
• One waiver of right to respond to the petition in Idenix Pharmaceuticals LLC v. Gilead Sciences, Inc. was filed with the Court by Gilead Sciences.
• Lastly, the Supreme Court denied a total of 18 different petitions this week.

Here are the details.

Yesterday the Supreme Court granted the petitions for certiorari in three related Arthrex cases: (1) United States v. Arthrex, Inc. (19-1434), (2) Smith & Nephew, Inc. v. Arthrex, Inc. (19-1452), and (3) Arthrex, Inc. v. Smith & Nephew, Inc. (19-1458). The Court decided to consolidate the cases for briefing and oral argument and announced that all future filings and activity will be reflected on docket of No. 19-1434. The Court’s widely anticipated review will determine the fate of Administrative Patent Judges (APJs) under the Appointments Clause. Here are the details.

This morning, the Federal Circuit issued a precedential opinion in a patent case and a nonprecedential opinion denying permission for an interlocutory appeal. The Federal Circuit also issued three Rule 36 judgments. Here are the introductions to the opinions and links to the Rule 36 judgments.

Here is an update on recent en banc activity at the Federal Circuit. The en banc court heard oral argument in a veterans case last week. As for petitions for en banc consideration in patent cases, a new petition was filed in a case raising questions related to literal infringement and claim construction; the court invited a response to a petition raising a question related to sanctions; and the court denied two petitions, one in a pro se case and one raising a question related to non-obviousness. Here are the details.

This morning the Federal Circuit issued a precedential opinion in a patent case and a nonprecedential opinion in a veterans case. Here are the introductions to the opinions.

• SCOTUS Denial of TCL v. Ericsson Petition Means Juries Decide Damages for SEP Infringement – The Supreme Court declined to review a Federal Circuit decision requiring jury trials for the determination of damages for past infringing activities.
• Full Federal Circuit Grapples With Right to Review VA Manual – The Federal Circuit’s first telephonic oral argument for an en banc rehearing of a case was held last Thursday.

Here’s the latest.

The Federal Circuit did not publish any opinions this morning.

Last week, the Federal Circuit held an en banc session to hear oral argument in National Organization of Veterans Advocates, Inc. v. Secretary of Veterans Affairs. In this case, the court considered two questions posed by NOVA in its petition: (1) whether the Federal Circuit has jurisdiction to review a generally applicable interpretive rule promulgated by the Department of Veterans Affairs through its Adjudication Procedures Manual, and (2) whether a Federal Circuit Rule impermissibly supersedes a statute of limitations. Additionally, as a preliminary matter, the court heard argument as to whether NOVA has Article III standing in this case. This is our argument recap.

This morning, the Federal Circuit issued one nonprecedential erratum and two nonprecedential Rule 36 judgments. Here is the text of the erratum and links to the Rule 36 judgments.

Earlier this week, on October 7, 2020, the Supreme Court heard oral argument in Google LLC v. Oracle America, Inc., the long-running software copyright case. Due to the COVID-19 pandemic, this extended oral argument took place over the phone and lasted for over 90 minutes. The Court worked to great lengths to untangle the attorneys’ many vital arguments that have developed over the past decade. As we previewed the day before the argument, the issues, in this case, are the availability of copyright protection for software interfaces, in particular Oracle’s Java SE declarations, and Google’s copying of such code that it contends is fair use.