United States: Patent Law And The Supreme Court: Certiorari Petitions Pending (November 2013)

Last Updated: November 28 2013
Article by WilmerHale

WilmerHale compiles lists of certiorari petitions that raise patent-law issues. This page contains a consolidated list of all recently pending petitions, organized in reverse chronological order by date of certiorari petition.


Bancorp Services, LLC v. Sun Life Assurance Co. of Canada (U.S.), et al., No. 13-584

Question Presented:

  1. Whether claims to computer-implemented inventions—ncluding claims to systems and machines, processes, and items of manufacture—redirected to patent-eligible subject matter within the meaning of 35 U.S.C. § 101 as interpreted by this Court?

Cert. petition filed 11/8/13.

CAFC Opinion, CAFC Argument


Metso Minerals, Inc. v. Poewerscreen Intern. Distribution, No. 13-565

Questions Presented:

  1. Following a civil jury's verdict, whether the Court of Appeals for the Federal Circuit, in direct contravention of relevant precedent, may reverse the district court's denial of a motion for judgment as a matter of law of patent non-obviousness without applying the regional circuit's standard of review and in so doing, rely only upon contested evidence implicitly rejected by the jury and ignore substantial evidence supporting the jury's verdict, thereby depriving the jury verdict winner of its right to a jury trial under the Seventh Amendment.
  2. With respect to commercial success as a secondary indicia of patent non-obviousness, whether a nexus is presumed between a patented invention and commercially successful products covered by the patent where the patent's claims are coextensive with the commercially successful products.
  3. Whether, and to what extent, a court of appeals may review the sufficiency of the evidence supporting a civil jury verdict where the party requesting review made a motion for judgment as a matter of law under Rule 50(b) of the Federal Rules of Civil Procedure after the jury's verdict that had not been made by the party under Rule 50(a) before submission of the case to the jury.
  4. Where a jury instruction was erroneous, may a court of appeals reverse a district court's finding that the erroneous instruction had no prejudicial effect, where the evidence cited by the district court showed that the issue addressed by the instruction was not contested at trial.

Cert. petition filed 11/5/13.

CAFC Opinion, CAFC Argument


Convolve, Inc. v. Compaq Computer Corp., No. 13-547

Questions Presented:

Rule 56(a), Federal Rules of Civil Procedure, permits a grant of summary judgment only if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." The questions presented for review are:

  1. Whether a United States Court of Appeals, in summarily affirming an internally inconsistent summary judgment that is directly contradicted and discredited by the district court's own fact-findings, has so far departed from the accepted and usual course of summary judgment proceedings as to call for an exercise of this Court's supervisory power? See Sup. Ct. R. 10(a).
  2. Whether an internally inconsistent summary judgment—directly contradicted and discredited by the district court's own fact-findings—violates the right to trial by jury secured by the Seventh Amendment to the United States Constitution?
  3. Whether an internally inconsistent summary judgment—directly contradicted and discredited by the district court's own fact-findings—violates the guarantee of due process in federal courts secured by the Fifth Amendment to the United States Constitution?

Cert. petition filed 10/29/13, waiver of respondent Seagate Technology filed 11/6/13, waiver of respondent Compaq Computer filed 11/8/13, conference 12/6/13.

CAFC Opinion, CAFC Argument


Soverian Software LLC v. Newegg Inc., No. 13-477

Question Presented:

In Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 17 (1966), this Court held that "[w]hile the ultimate question of patent validity is one of law," that question is premised on "several basic factual inquiries." Those inquiries include "the scope and content of the prior art" and the "differences between the prior art and the claims at issue." Id. In KSR International Co. v. Teleflex Inc., 550 U.S. 398, 407 (2007), this Court reaffirmed that the Graham factual questions "continue to define the inquiry that controls" the determination of obviousness. The Federal Circuit in this case resolved disputes about these "basic factual inquiries" under the guise of determining the ultimate legal question.

The question presented is:

Whether the Federal Circuit's effective redefinition of obviousness as a pure question of law, allowing it to resolve disputed factual questions in the first instance on appeal, violates the Seventh Amendment and this Court's precedent.

Cert. petition filed 10/16/13.

CAFC Opinion, CAFC Argument

WilmerHale represents petitioner Soverain Software LLC.


Cephalon, Inc. v. Apotex, Inc., No. 13-441

Questions Presented:

  1. Whether the mere act of omitting purportedly material information during a patent prosecution, without separate proof of intent to deceive the Patent and Trademark Office, can constitute clear and convincing evidence sufficient to support a finding of inequitable conduct.
  2. Whether a corporation can be found liable for inequitable conduct in the absence of a finding of inequitable conduct by any of its officers, employees or agents.

Cert. petition filed 10/7/13.

CAFC Opinion, CAFC Argument

WilmerHale represents petitioner Cephalon, Inc.


Saffran v. Johnson & Johnson, et al., No. 13-405

Questions Presented:

Based on the district court's constructions of the patent claim terms, a jury found that Cordis infringed Dr. Saffran's patent. A fractured panel of the Federal Circuit did not afford the district court's claim constructions deference, changed those constructions, and reversed the judgment of infringement. At the same time, the en banc Federal Circuit decided to reconsider the appropriate level of deference to district court claim constructions. See Lighting Ballast Control LLC v. Philips Elecs.N. Am. Corp., 500 F. App'x 951 (Fed. Cir. 2013). Dr. Saffran sought to have his case held or reconsidered in conjunction with Lighting Ballast, but the Federal Circuit refused. The questions presented are:

  1. Whether the Federal Circuit should have given deference to the district court's factual findings in construing the patent claims.
  2. Whether the Federal Circuit erred in arbitrarily subjecting two similar, concurrently pending cases to potentially different standards of review.

Cert. petition filed 9/30/13, conference 11/15/13, response requested 11/12/13.

CAFC Opinion, CAFC Argument


Nautilus, Inc. v. Biosig Instruments, Inc., No. 13-369

Questions Presented:

Does the Federal Circuit's acceptance of ambiguous patent claims with multiple reasonable interpretations - so long as the ambiguity is not "insoluble" by a court - defeat the statutory requirement of particular and distinct patent claiming?

Does the presumption of validity dilute the requirement of particular and distinct patent claiming?

Cert. petition filed 9/21/13.

CAFC Opinion, CAFC Argument


Organic Seed Growers and Trade Association, et al. v. Monsanto Company, et al., No. 13-303

Question Presented:

Petitioners are farmers and seed dealers who wish to avoid using or selling genetically engineered (GE) seed but are at an immediate and real risk of being contaminated by Respondents' patented GE seed and then accused of patent infringement by Respondents. This risk of being sued for patent infringement has compelled Petitioners to forgo full use of their land and adopt burdensome genetic testing in order to avoid being contaminated. To alleviate the need to undertake those precautions, Petitioners filed this action seeking a declaration that being contaminated by Respondents' GE seed does not render them liable for patent infringement. Petitioners also requested, but Respondents refused to grant, a covenant not to sue. The District Court dismissed, believing Petitioners must be at risk of suit to have standing. The Court of Appeals affirmed after finding Respondents mooted the case by making "binding assurances" to not make patent infringement claims against Petitioners contaminated up to 1%. However, Petitioners risk being contaminated in amounts much greater than 1%, and thus remain compelled to forgo full use of their land and adopt genetic testing of their seed supplies in order to avoid being accused of patent infringement by Respondents.

Given that non-GE farmers and seed dealers will inevitably be contaminated by Respondents' GE seed, and given Respondents' aggressive assertion of its patents on GE seed and refusal to grant Petitioners a covenant not to sue, do Petitioners have standing to seek a declaratory judgment that they will not be liable as infringers of Respondents' patents when contaminated?

Cert. petition filed 9/5/13.

CAFC Opinion, CAFC Argument


Alice Corp. Pty. Ltd. v. CLS Bank International, et al., No. 13-298

Question Presented:

Whether claims to computer-implemented inventions - including claims to systems and machines, processes, and items of manufacture - are directed to patent-eligible subject matter within the meaning of 35 U.S.C. § 101 as interpreted by this Court?

Cert. petition filed 9/4/13, conference 12/6/13.

CAFC Opinion, CAFC Argument


Arthrex, Inc. v. Smith & Nephew, Inc., No. 13-290

Question Presented:

In Global-Tech Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060 (2011), this Court held that, to be liable under a "willful blindness" theory of intent, "(1) the defendant must subjectively believe that there is a high probability that a fact exists and (2) the defendant must take deliberate actions to avoid learning of that fact." Id. at 2070. The Court explained that "willful blindness" is a rigorous standard that "surpasses recklessness and negligence." Ibid. In Safeco Insurance Co. of America v. Burr, 551 U.S. 47 (2007), the Court held that a defendant cannot be found to have committed a violation under the lesser "recklessness" standard if its actions were consistent with an understanding of legal requirements that was "not objectively unreasonable," "whatever [its] subjective intent may have been." Id. at 70 & n.20. The question presented is:

Whether a defendant may be held liable under the "willful blindness" standard where its actions were consistent with an understanding of relevant legal requirements that was not objectively unreasonable.

Cert. petition filed 8/30/13, conference 12/6/13.

CAFC Opinion, CAFC Argument


Power Integration, Inc. v. Fairchild Semiconductor Int'l, Inc., No. 13-269

Question Presented:

In this case, a jury found that respondent Fairchild Semiconductor committed patent infringement and induced infringement by others—in the United States—after it reverse-engineered and mass produced petitioner Power Integrations' patented technology for controller chips that are used in power supplies (or chargers) for consumer electronic devices such as smart phones. The jury also found that this U.S.-based infringement directly and foreseeably caused Power Integrations to lose sales of its chips worldwide, and the jury awarded $34 million in damages based on these lost profits and other injuries. The Federal Circuit set aside the jury's damages award, concluding that under the "presumption against extraterritoriality" patent damages can never be based on lost foreign sales of an infringing product, even when such lost sales are the direct and foreseeable result of patent infringement inside the United States.

The question presented is whether the Federal Circuit erroneously rejected the jury's damages verdict after holding—in direct conflict with the decisions of this Court—that a patent owner is barred from obtaining damages under 35 U.S.C. § 284 for lost sales outside the United States, even where those lost sales are the direct and foreseeable result of patent infringement inside the United States.

Cert. petition filed 8/23/13, response requested 9/19/13.

CAFC Opinion, CAFC Argument


WildTangent, Inc. v. Ultramercial, LLC, et al., No. 13-255

Question Presented:

When is a patent's reference to a computer, or computer-implemented service like the Internet, sufficient to make an unpatentable abstract concept patent eligible under 35 U.S.C. § 101?

Cert. petition filed 8/23/13, waiver by respondent Ultramercial, LLC filed 11/6/13, conference 12/6/13.

CAFC Opinion, CAFC Argument


Maersk Drilling USA, Inc. v. Transocean Offshore Deepwater Drilling, Inc., No. 13-43

Question Presented:

Direct infringement of a U.S. patent occurs when a person "makes, uses, offers to sell, or sells any patented invention, within the United States," or "imports into the United States any patented invention." 35 U.S.C. § 271(a). Petitioner offered, negotiated, and agreed in Scandinavia to provide a Norwegian oil company with drilling services using Petitioner's oil rig. Consistent with the contract's express terms, before bringing the rig into or using it in U.S. waters, Petitioner modified it so that it did not infringe any U.S. patent.

The Federal Circuit nonetheless held that Petitioner offered to sell and sold an infringing rig "within the United States." Although all of the relevant negotiations occurred overseas and Petitioner modified the rig to avoid any infringement in U.S. waters, the Federal Circuit held that entry into a service contract in Scandinavia violated U.S. patent law because the parties were U.S. companies and the contract contemplated performance in the United States. The Federal Circuit also extended U.S. patent law by deeming an offer to provide services using a rig to be an "offer to sell" or "sale" of the rig itself.

The question presented is:

Whether offering, negotiating, and entering into a contract in Scandinavia to provide services using a potentially patented device constitutes an "offer to sell" or "sale" of an actually patented device "within the United States," under 35 U.S.C. § 271(a).

Cert. petition filed 7/8/13, conference 9/30/13, CVSG 10/7/13.

CAFC Opinion, CAFC Argument


The Fox Group, Inc. v. Cree, Inc., No. 12-1378

Question Presented:

The Federal Circuit's opinion below, for the first time in American jurisprudence, invalidated a patent based on a prior "invention" that provided no benefit to the public, because the prior inventor concealed how to make the invention, did not commercialize it, and did not apply for a patent. The Federal Circuit based its holding on a distinction between "process" and "product" patents that does not exist in the plain language of the relevant statute, 35 USC § 102. Did the Federal Circuit err in interpreting § 102(g)(2) to allow non-enabling disclosures to invalidate product patents, a result that will create significant uncertainty in litigation involving product patents and penalize patent holders who publicly shared their inventions?

Cert. petition filed 5/21/13, waiver of respondent Cree, Inc. filed 6/14/13, response requested 8/5/13, conference 9/30/13, conference 10/11/13.

CAFC Opinion, CAFC Argument


Broadcom Corp. v. Azure Networks, LLC, et al., No. 12-1475

Questions Presented:

  1. Did the Court's decision in Stewart Organization, Inc. v. Ricoh Corp., 487 U.S. 22 (1988), change the standard for enforcement of clauses that designate an alternative federal forum, limiting review of such clauses to a discretionary, balancing-of-conveniences analysis under 28 U.S.C. § 1404(a)?
  2. If so, how should district courts allocate the burdens of proof among parties seeking to enforce or to avoid a forum-selection clause?
 Cert. petition filed 6/19/13, conference 9/30/13. 

CAFC Opinion

WilmerHale represents petitioner Broadcom Corp.


Nokia Inc., et al. v. ITC, No. 12-1352

Questions Presented:

Section 337 of the Tariff Act of 1930 permits the International Trade Commission to exclude from entry into the United States an article that infringes a valid and enforceable patent. Under what is known as the "domestic industry" requirement, however, it may do so only when a complainant establishes that there is "an industry in the United States, relating to the articles protected by the patent."

Respondent InterDigital asserted that petitioner Nokia violated section 337 by importing cellular handsets into the United States that allegedly infringed InterDigital's patents. After a five-day evidentiary hearing, a judge concluded that no infringement had occurred. In a divided opinion, the Federal Circuit, employing de novo review, concluded that the patent claims had been erroneously construed and reversed the non-infringement determination. The court also held that "licensing alone" is sufficient to satisfy the domestic industry requirement. In denying rehearing, the panel majority reiterated that licensing alone satisfies the domestic industry requirement as long as the patent concerns "the article that is the subject of the exclusion proceeding." The questions presented are:

  1. Whether the "domestic industry" requirement of section 337 is satisfied by "licensing alone" despite the absence of proof of "articles protected by the patent."
  2. Whether underlying factual determinations in a patent claim construction ruling should be subject to deferential review by the Federal Circuit.
 Cert. petition filed 5/10/13, conference 10/11/13. 

CAFC Opinion, CAFC Argument


Mirowski Family Ventures, LLC v. Medtronic, Inc., et al., No. 12-1116, vide 12-1128

Question Presented:

"Claim construction is the single most important event in the course of a patent litigation. It ... is often the difference between infringement and non-infringement, or validity and invalidity. Despite the crucial role that claim construction plays in patent litigation, our rules are still ill-defined and inconsistently applied, even by us. Commentators have observed that claim construction appeals are 'panel dependent' which leads to frustrating and unpredictable results for both the litigants and the trial court." Retractable Techs., Inc. v. Becton, Dickinson & Co., 659 F.3d 1369, 1370 (Fed. Cir. 2011) (en banc) (Moore, Circuit Judge, with whom Rader, Chief Judge, joins, dissenting from the denial of the petition for rehearing en banc).

Each of the two questions presented below are directed to this "single most important event." 

  1. Where a district court has resolved conflicting expert testimony to decide a claim construction issue, should this decision be reviewed on appeal with no deference?
  2. Should the words of a patent claim be construed by their ordinary meaning (with a narrow exception) as the Federal Circuit holds or should they be construed according to the patent's specification as this Court has long held?

Cert. petition filed 3/4/13, conference 5/16/13.

CAFC Opinion, CAFC Argument

WilmerHale represents respondent Medtronic, Inc.


Sony Computer Entertainment America LLC, et al. v. 1st Media, LLC, No. 12-1086

Question Presented:

Did the Court of Appeals for the Federal Circuit err in restricting district courts' equitable discretion in evaluating patent unenforceability, contrary to this Court's precedent in Keystone Driller, Hazel-Atlas, and Precision Instrument, by applying a rigid test that (a) forecloses district courts from considering the entire circumstantial record; and (b) precludes district courts from granting equitable remedies where a patent applicant has violated the PTO's duty of candor.

Cert. petition filed 3/4/13, conference 5/9/13, CVSG 5/13/13, conference 10/11/13.

CAFC Opinion, CAFC Argument


Akamai, et al. v. Limelight Networks, Inc., No. 12-960, vided 12-786 and 12-800

Question Presented:

Cross-petitioners Akamai Technologies, Inc. and the Massachusetts Institute of Technology (collectively, "Akamai") respectfully file this conditional cross-petition for a writ of certiorari to review the judgment of the United States Court of Appeals for the Federal Circuit in this case. The Court should deny the petition for a writ of certiorari in No. 12-786 and, if the Court does so, it need not consider this cross-petition. If the Court grants that petition, however, it should also grant this conditional cross-petition so the Court can fully consider the question of liability for joint infringement, not just under one provision of the patent infringement statute (35 U.S.C. § 271(b)) as Limelight requests, but under all relevant provisions of that statute. The question presented by this conditional cross-petition is:

Whether a party may be liable for infringement under either 35 U.S.C. § 271(a) or § 271(b) where two or more entities join together to perform all of the steps of a process claim?

Cross-petition for cert. filed 2/1/13, conference 6/6/13, conference 6/13/13, conference 6/20/13, CVSG 6/24/13.

CAFC Opinion, CAFC Argument


Limelight Networks, Inc. v. Akamai Technologies, Inc., et al., No. 12-786

Question Presented:

Akamai holds a patent claiming a method involving redirecting requests for Internet content and selecting optimal servers. The Federal Circuit acknowledged that neither Limelight nor customers using Limelight's service directly infringe Akamai's patent under 35 U.S.C. § 271(a) because no one performs all the steps of the patented method. App. 6a, 30a. The Federal Circuit nevertheless held that Limelight could be liable, under 35 U.S.C. § 271(b), for inducing infringement if (1) it knew of Akamai's patent; (2) it performed all but one of the steps of the method; (3) it induced its customers to perform the final step of the claimed method; and (4) the customers performed that step. App. 30a. The question presented is:

Whether the Federal Circuit erred in holding that a defendant may be held liable for inducing patent infringement under 35 U.S.C. § 271(b) even though no one has committed direct infringement under § 271(a).

Cert. petition filed 12/28/12, conference 6/6/13, conference 6/13/13, conference 6/20/13, CVSG 6/24/13.

CAFC Opinion, CAFC Argument


The Association for Molecular Pathology, et al. v. Myriad Genetics, Inc., et al., No. 11-725

Questions Presented:

  1. Are human genes patentable?
  2. Did the court of appeas err in adopting a new and inflexible rule, contrary to normal standing rules and this Court's decision in MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007), that petitioners who have been indisputably deterred by Myriad's "active enforcement" of its patent rights nonetheless lack standing to challenge those patents absent evidence that they have been personally and directly threatened with an infringement action?

Cert. petition filed 12/7/11, conference 2/17/12, likely being held, perhaps for Mayo Collaborative Services v. Prometheus Laboratories, Inc., No. 10-1150. Cert. petition granted on 3/26/12; judgment vacated and case remanded for further consideration in light of Mayo Collaborative Services v. Prometheus Laboratories, Inc., 500 U.S.__(2012).

CAFC Opinion, CAFC Argument

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