FedCircuitBlog

Here is a report on recent news and commentary related to the Supreme Court’s decision yesterday in Hikma Pharmaceuticals USA Inc. v. Amarin Pharma, Inc. We highlight:

• an article discussing how the Supreme Court’s decision “may make generic drugmakers less vulnerable to patent ‌lawsuits involving so-called ‘skinny labels’”;
• an article similarly reporting how the Supreme Court’s decision “is expected to strengthen legal protections for generic manufacturers that launch products using the Hatch-Waxman Act’s ‘carve-out’ process”;
• a blog post suggesting the Supreme Court’s decision “scolded” the Federal Circuit “for its recent approach” and “has potentially far-reaching implications for the induced infringement standard across sectors”; and
• an article emphasizing that “all nine justices” joined Justice Jackson’s opinion in this “closely watched pharmaceutical patent dispute.”

Last month, the Federal Circuit heard oral argument in VLSI Technology LLC v. OpenSky Industries, LLC, a patent case we have been tracking because it attracted an amicus brief. In this case, VLSI appeals a judgment of the Patent Trial and Appeal Board in an inter partes review proceeding. Notably, a related cross-appeal, OpenSky Industries, LLC v. VLSI Technology LLC, was argued separately this month. Judges Dyk, Linn, and Reyna heard the oral argument. This is our argument recap.

This morning the Supreme Court reversed the Federal Circuit’s holding in Hikma Pharmaceuticals USA Inc. v. Amarin Pharma, Inc. addressing so-called skinny labeling and inducement of patent infringement. The Federal Circuit had rejected “characterizations that a reversal in this case would ‘effectively eviscerate section viii carve-outs’” of the Hatch-Waxman Act and held that Amarin had “plausibly pleaded that Hikma . . . induced infringement.” The Supreme Court disagreed. In a unanimous opinion authored by Justice Jackson, the Court decided mere plausibility that a physician could read relevant statements “as an instruction or encouragement to” infringe did not rise to the required standard of taking “active steps” to induce patent infringement. Here is the introduction and conclusion of today’s opinion. We plan to post a full opinion summary soon.

This morning, the Federal Circuit released one precedential opinion and four nonprecedential opinions. The precedential opinion comes in a patent case appealed from the Eastern District of Texas. One nonprecedential opinion comes in a patent case appealed from the Patent Trial and Appeal Board, one comes in a trade case appealed from the Court of International Trade, one comes in patent case appealed from the District of Delaware, and the last opinion comes in response to a petition for review of a decision from the Merit Systems Protection Board. Here are the introductions to the opinions.

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 are waiting for the Court to issue its decision. As for pending petitions, since our last update, two new petitions were filed in a patent case and a pro se case; two waivers of the right to respond to petitions were filed in a patent case and a pro se case; one reply brief was filed in a trade case; seven amicus briefs were filed in a patent case; and the Supreme Court denied three petitions in a takings case, a veterans case, and a pro se case. Here are the details.

This morning, the Federal Circuit released two nonprecedential opinions and two Rule 36 judgments. One of the opinions comes in a government contract case appealed from the Court of Federal Claims. The other comes in a case appealed from the Merit Systems Protection Board. Here are the introductions to the opinions as well as links to the Rule 36 judgments.

Here is an update on recent en banc activity at the Federal Circuit in patent cases. Since our last update, one new response to a petition was filed in a case raising questions related to standing and contract reformation, and four new amicus briefs were filed in a case raising a question related to damages. Here are the details.

Late yesterday, the Federal Circuit released three nonprecedential orders dismissing cases. This morning the court released one precedential opinion, two nonprecedential opinions, and four nonprecedential orders. The precedential opinion comes in a patent case appealed form the District of Nebraska, while both nonprecedential opinions come in veterans cases appealed from the Court of Appeals for Veterans Claims. One of nonprecedential orders grants a motion for summary affirmance in a case appealed form the Court of Federal Claims; the other three orders are dismissals. Here are the introductions to the opinions and the first order as well as links to the dismissals.

Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today we highlight:

• a blog post suggesting that, “when the PTAB reverses a [35 U.S.C.] § 101 rejection out of Art Unit 3662, it is worth a look to see what went right for the Applicant”;
• an article reporting how “U.S. Patent and Trademark Office data indicates the office mistakenly kept hundreds of thousands of records of patent ownership transfers from becoming public for years”;
• an article observing that Chief Judge “Moore . . . retained a PR firm to publicize a cartoon theme song that she apparently commissioned”; and
• an article indicating a “‘flood’ of lawsuits against Section 122 tariffs . . . is seen as unlikely.”

This morning, the Federal Circuit released two precedential opinions and one nonprecendential order. The first opinion comes in a veterans case appealed from the Court of Appeals for Veterans Claims, and the second comes in an international trade case appealed from the Court of International Trade. The order is a dismissal. Here are the introductions to the opinions and a link to the dismissal.