United States: Patent Law And The Supreme Court: Certiorari Petitions Pending (February 2014)

Sandoz Inc., et al. v. Allergan, Inc., No. 13-889

Questions Presented:

The Patent Act provides that a patent may not be obtained for a claimed invention that is "obvious." 35 U.S.C. § 103. The Federal Circuit held it was obvious to combine in a single bottle two eye-drop medications commonly used together and thus invalidated one patent. But it then went on to hold it not obvious to use that same combination as it was intended to be used because a result of such use was purportedly "unexpected." That sole "unexpected result" was the unremarkable fact that the combination outperformed one of its component medications taken alone, allowing for less frequent dosing. That was the only basis for nonobviousness.

Having upheld that method-of-use claim, the Federal Circuit then refused to decide the invalidity counterclaims of two additional patents that are virtually indistinguishable from the patent it already had invalidated. Even though these separate counterclaims had been appealed as of right and would rid the marketplace of two invalid patents, the Federal Circuit deemed it "unnecessary to address" them because their resolution would not affect the termination date of the injunction.

The questions presented are:

  1. Whether and to what extent identification of an "unexpected result" of using an obvious composition, by itself, can render that use patentable.
  2. Whether a court of appeals may sua sponte decline to decide appealed independent judgments as to counterclaims of patent invalidity.

Cert. petition filed 1/22/14.

CAFC Opinion, CAFC Argument

Commil USA, LLC v. Cisco Systems, Inc., No. 13-896

Questions Presented:

Commil holds a patent teaching a method to implement short-range wireless networks. At trial, the jury returned a verdict that Commil's patent was valid, that Cisco directly infringed but did not induce infringement, and awarded damages. Because Cisco's counsel invoked stereotypes about Commil's Jewish owner and inventors during trial, the district court found the verdict "inconsistent with substantial justice" and ordered a new trial on inducement and damages only. At the second trial, the jury returned a verdict that Cisco induced infringement and awarded damages. The Federal Circuit reversed and remanded for a third trial on two grounds. First, although Commil's patent is valid, the Federal Circuit held that Cisco's "good faith belief" that the patent was invalid is a defense to induced infringement. Second, although Cisco had actual knowledge of Commil's patent, the Federal Circuit held that this Court's opinion in Global-Tech Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060 (2011), rendered erroneous and prejudicial the jury instruction based on DSU Medical Corp. v. JMS Co., 471 F.3d 1293 (Fed. Cir. 2006). The questions presented are:

  1. Whether the Federal Circuit erred in holding that a defendant's belief that a patent is invalid is a defense to induced infringement under 35 U.S.C. § 271(b).
  2. Whether the Federal Circuit erred in holding that Global-Tech Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060 (2011), required retrial on the issue of intent under 35 U.S.C. § 271(b) where the jury (1) found the defendant had actual knowledge of the patent and (2) was instructed that "[i]nducing third-party infringement cannot occur unintentionally."

Cert. petition filed 1/23/14.

CAFC Opinion, CAFC Argument

Novozymes A/S, et al. v. DuPont Nutrition Biosciences APS, et al., No. 13-865

Question Presented:

This case is an opportunity for the Court to address the Federal Circuit's persistent failure to apply in patent cases the highly deferential standard of review of jury verdicts that is routinely and consistently applied by all of the regional circuits. A challenge to the validity of a patent on the ground that its claims are not supported by an adequate written description of the invention presents a pure question of fact that must be decided from the perspective of a person of ordinary skill in the art, an inquiry that frequently depends heavily on expert testimony. Ariad Pharm., Inc. v. Eli Lilly & Co., 598 F.3d 1336, 1351, 1355 (Fed. Cir. 2010) (en banc). The accused infringer must prove invalidity by clear and convincing evidence. Microsoft Corp. v. i4i Ltd. P'ship, 131 S. Ct. 2238 (2011). After a properly instructed jury found the claims of the asserted patent in this case adequately described and not invalid, a divided panel of the Federal Circuit held, contrary to the verdict, that the accused infringer had proved invalidity as a matter of law. The dissent objected to the majority's failure to defer to the jury's findings of fact, observing that the jury's verdict was supported by expert testimony and other substantial evidence and "deserve[d] significant deference." App. 37, 40.

The question presented is:

Whether the Federal Circuit effectively engaged in de novo review of the jury's verdict in violation of Rule 50 and the Seventh Amendment when it refused to accept a verdict supported by substantial evidence, including properly admitted expert testimony that was essential to the issue, on a question of fact on which the accused infringer bore a heightened burden of proof.

Cert. petition filed 1/20/14.

CAFC Opinion, CAFC Argument

Teva Pharmaceuticals USA, Inc., et al. v. Sandoz, Inc., et al., No. 13-854

Question Presented:

Rule 52(a) of the Federal Rules of Civil Procedure provides that in matters tried to a district court, the court's "[f]indings of fact ... must not be set aside unless clearly erroneous."

The question presented is as follows:

Whether a district court's factual finding in support of its construction of a patent claim term may be reviewed de novo, as the Federal Circuit requires (and as the panel explicitly did in this case), or only for clear error, as Rule 52(a) requires.

Cert. petition filed 1/10/14.

CAFC Opinion, CAFC Argument

In re Gorden, No. 13-844

Question Presented:

When a patent claim meets all of the statutory requirements for patentability, whether it is error to apply the printed matter doctrine to deny patentability on obviousness grounds under 35 U.S.C. § 103. The "printed matter doctrine" requires that any element of a patent claim which recites patent-ineligible printed matter must be excised from the patent claim and ignored in an obviousness analysis under Section 103. The doctrine was judicially adopted before Section 103 was enacted; has no basis in the current statute; directly contradicts Section 103 which requires that obviousness be determined based on the "subject matter as a whole" of the invention; and directly contradicts this Court's interpretation of Section 103 as requiring that all claim elements be considered in an obviousness analysis.

Cert. petition filed 1/10/14, waiver of respondent Teresa Stanek Rea, Acting Director, PTO, filed 1/24/14, conference 2/21/14.

CAFC Opinion, CAFC Argument

O2 Micro Intern. Ltd. v. Monolithic Power Systems, Inc., et al., No. 13-848

Question Presented:

Section 285 of the Patent Act (Title 35) allows for the shifting of fees in exceptional patent infringement cases. This Court is reconsidering the Federal Circuit law in this area in two cases it has accepted this term.[FN1] This case, which involves the affirmance of a sanction of $9,082,580, presents related questions worthy of this Court's consideration in view of its forthcoming evaluation of this area of the law.

FN1. Highmark Inc. v. Allcare Health Mgmt. Sys., Inc., 687 F.3d 1300, cert, granted, 134 S. Ct. 48 (U.S. Oct. 1, 2013) (No. 12-1163); Octane Fitness, LLC v. Icon Health Fitness, Inc., 496 F. App'x 57, cert, granted, 134 S. Ct. 49 (U.S. Oct. 1, 2013) (No. 12-1184).

The questions presented are:

  1. Whether a court can vitiate the First Amendment right to petition by failing to require findings related to either "objective baselessness" or subjective "bad faith," established as the standard for fee shifting cases by this Court in Professional Real Estate Investors, Inc., by merely labeling a party's actions "litigation misconduct" when the district court did not do so.
  2. Whether there is a standard for finding "litigation misconduct" under 35 U.S.C. § 285, and, if so, whether it requires culpability greater than negligence.
  3. Whether, under Fox v. Vice, ___ U.S. ___, 131 S. Ct. 2205 (2011) (holding that shifting of fees is improper for all fees that would nevertheless have been incurred absent the misconduct), a court may properly include in a sanction an award of attorneys' fees incurred in a separate tribunal, such as the ITC, in which there has been no finding of wrongdoing and where those fees would have indisputably been incurred regardless of the alleged wrongdoing.

Cert. petition filed 1/14/14.

CAFC Opinion, CAFC Argument

Cheese & Whey Systems, Inc. v. Tetra Pak Cheese and Powder Sys., Inc., et al., No. 13-804

Questions Presented:

The district court construed the relevant cheese processing vat patent claim terms, including the terms "a plurality of sharp cutting edges disposed in a generally common first plane" and "a plurality of blunt stirring edges disposed in a generally common second plane" on cross motions for summary judgment and held as a matter of law that the accused devices did not literally satisfy those limitations, but that they were satisfied under the doctrine of equivalents. The district court also held as a matter of law that the relevant claims were not invalid, either on grounds of indefiniteness or prior art. On appeal the Federal Circuit supplanted what it characterized as the district court's "unduly limited" interpretation of the "generally common plane" limitations. Based on the Federal Circuit's broader interpretation of the claim language, and without permitting Petitioner to offer evidence or argument directed to the new, broadened construction, the panel held that the accused devices literally satisfied the "generally common plane" limitation, raising two issues:

  1. Whether the United States Court of Appeals for the Federal Circuit exceeded its authority by adopting a broader claim interpretation than the district court, resulting in a broader scope of protection for the patentee, without the patentee having filed a cross-appeal directed to the district court's claim construction.
  2. Whether the United States Court of Appeals for the Federal Circuit denied Petitioners' fundamental right to due process under the Fifth Amendment to the Constitution by holding that the accused device literally satisfies the "generally common plane" limitation based on its broadened interpretation of the claim language without affording Petitioners a meaningful opportunity to address the issues of literal infringement or indefiniteness in light of the panel's broadened claim construction.

Cert. petition filed 1/6/14.

CAFC Opinion, CAFC Argument

Kobe Properties Sarl, et al. v. Checkpoint Systems, Inc., No. 13-788

Questions Presented:

The Patent Act provides that a "court in exceptional cases may award reasonable attorney fees to the prevailing party." 35 U.S.C. § 285. Recent decisions by the Federal Circuit have held that, in the absence of litigation misconduct or misconduct in securing the patent, a case can be deemed "exceptional" if it is both objectively baseless and brought in bad faith. After living with this case for more than ten years, including overseeing a two-week jury trial, the District Court found that this case was objectively baseless and brought in bad faith, and awarded the defendants all of their fees. In its very first application of its decision in Highmark, Inc. v. Allcare Health Mgmt. Sys., Inc., 687 F.3d 1300 (Fed. Cir. 2012), the Federal Circuit panel gave no deference to the District Court's objective baselessness and exceptional case determinations and reversed. App. 15. The Federal Circuit subsequently denied rehearing and rehearing en banc.

The questions presented are:[FN1]

FN1. These are the same questions presented in the petitions for writ of certiorari filed in Highmark, supra, and in Octane Fitness, LLC v. Icon Health & Fitness, Inc., No. 12-1184. This Court granted certiorari in both of those cases on October 1, 2013, 134 S. Ct. 48 (2013), 134 S. Ct. 49 (2013), and they are now pending before this Court.

  1. Whether a district court's exceptional case finding under 35 U.S.C. § 285, based on its judgment that a suit is objectively baseless, is entitled to deference.
  2. More broadly, whether the Federal Circuit's above-described two-part test for determining whether a case is exceptional under 35 U.S.C. § 285 improperly appropriates a district court's discretionary authority to award attorney fees to prevailing accused infringers in contravention of statutory intent and this Court's precedent, thereby raising the standard for accused infringers to recoup their fees and encouraging patent plaintiffs to bring spurious patent cases to cause competitive harm or for other improper purposes.

Cert. petition filed 12/30/13.

CAFC Opinion, CAFC Argument

LG Electronics, Inc., et al. v. InterDigital Communications, LLC, et al., No. 13-796

Questions Presented:

  1. Does a court have jurisdiction to review an agency action omitted from a statute's detailed list of reviewable actions, because (a) the presumption favoring judicial review overrides the statutory text, or (b) the agency action purportedly has the same "operative effect, in terms of economic impact," as actions the statute specifies as reviewable?
  2. Where the parties indisputably agreed to arbitrate issues of arbitrability, should a court conduct its own inquiry into the merits of the arbitrability issue before referring the matter to arbitration?

Cert. petition filed 12/31/13.

CAFC Opinion, CAFC Argument

Morsa v. United States Patent and Trademark Office, No. 13-755

Questions Presented:

  1. Can the Patent Office unilaterally abrogate a legally binding agreement to not use or rely on unreliable, date-and-content-modifiable alleged prior art?
  2. Can the Patent Office prevail even when they've at all times ignored, never contested, and never rebutted dispositive evidence?
  3. Can the Federal Circuit affirm the rejection of claims which the Patent Office has not properly and legally preserved?
  4. Can prior art which does not enable a claim render said claim obvious, especially when the totality of the prior art consists of merely a single alleged prior art item?
  5. Are secondary/objective factors preserved and therefore entitled to consideration as long as they are at a minimum listed in the briefs with references to their arguments in the record?
  6. Can the Federal Circuit affirm obviousness rejections the Patent Office never made?
  7. Can new evidence be presented as the result of new Federal (or Supreme) Court decisions, especially when the new decisions are precedential?
  8. Is it proper for the Patent Office to readily allow patentable distinctions between different types of entities in some invention classifications including pharmaceuticals, but not in others?

Cert. petition filed 9/11/13, waiver of respondent PTO filed 1/17/14, conference 2/21/14.

CAFC Opinion, No CAFC Argument Presented

Minemyer v. R-BOC Representatives, Inc., et al., No. 13-708

Questions Presented:

Section 284 of the Patent Act, 35 U.S.C. § 284, provides that in cases of patent infringement "the court may increase the damages up to three times the amount found or assessed." This Court has never interpreted this statute but the Federal Circuit has held that such enhanced damages may be awarded in cases of "willful" infringement, and in In re Seagate Technology, LLC, 497 F.3d 1360 (Fed. Cir. 2007), it promulgated a two-part test to decide which cases qualify, a test that it says is identical to the one it uses to decide what cases qualify as "exceptional" for purposes of the attorneys' fee-shifting provision in section 285 of the Act, 35 U.S.C. § 285, now under consideration by this Court.

Does the Seagate test satisfy the statute's purpose when it has confused both the Federal Circuit itself and the district courts required to apply it, district courts have sometimes expressly declined to follow it, and it has so restrictively limited the class of cases warranting enhanced damages that the district court in this case felt compelled to vacate - in its own word, "sadly" - a jury's express finding of "willfulness," even though the infringement resulted from what the court agreed was "blatant, deliberate and slavish" copying of the patented product and no meaningful defenses were raised?

Cert. petition filed 12/12/13.

CAFC Opinion, CAFC Argument

Sinclair-Allison, Inc. v. Fifth Ave. Physician Services, LLC, et al., No. 13-709

Question Presented:

What should be the standard for analyzing the abstract-idea exception to patent eligibility under 35 U.S.C. § 101?

Cert. petition filed 12/11/13, conference 2/21/14.

CAFC Opinion, CAFC Argument

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—including 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

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

Questions Presented:

  1. 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?
  2. Does the presumption of validity dilute the requirement of particular and distinct patent claiming?

Cert. petition filed 9/21/13, conference 1/10/14.

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, response requested 12/6/13, conference 1/24/14.

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

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, brief of amicus United States filed 12/10/13, conference 1/10/14.

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, brief of amicus United States filed 12/10/13.

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 appeals 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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