United States: Patent Law And The Supreme Court: Certiorari Petitions Denied (January 2016)

Originally published January 27, 2016

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


Apls South, LLC v. The Ohio Willow Wood Company, No. 15-567

Questions Presented:

This case presents three related questions for review:

1. When post-complaint events establish plaintiff's prudential standing, may plaintiff cure a prudential standing defect existing when the original complaint was filed by filing a supplemental complaint in accordance with Fed. R. Civ. P. 15(d), or must it file a new case to assert its claim for relief?

2. If a district court exercises its discretion to allow a supplemental complaint pursuant to Fed. R. Civ. P. 15(d), does the supplemental complaint become the operative complaint from which plaintiff's prudential standing to bring the action is determined?

3. Where an exclusive licensee acquires all substantial rights in a patent after bringing an infringement action, and it files a supplemental complaint, pursuant to Fed. R. Civ. P. 15(d), after acquiring those rights, does the exclusive licensee have prudential standing to proceed with a patent infringement action in only its name, when it did not own all substantial rights in the patent when it originally brought the infringement action?

Cert. petition filed 10/29/15, conference 1/15/16. Petition denied 1/19/16.

CAFC Opinion, CAFC Argument


Arunachalam v. JPMorgan Chase & Co., No. 15-691

Questions Presented:

1. Is the Court of Appeals for the Federal Circuit ("CAFC") permitted to create a new protected class—a giant corporation—to take private property for public use without any compensation to the inventor, an icon of America Invents (who invented Web applications displayed on a Web browser, in ubiquitous use worldwide, from which the giant corporation has financially benefited excessively), by denying the inventor the protections of the Bill of Rights and 35 U.S.C § 282 of the Patent Act, thereby voiding the judgment?

2. Whether the CAFC erred in not honoring the law, after abridging liberty rights of a citizen, arbitrarily dismissing the appeal without a hearing or an opening brief or clear and convincing evidence from a giant corporation, depriving the citizen of patent property rights, was the citizen deprived of the protections of 35 U.S.C. § 282 of the Patent Act and the Bill of Rights, thereby voiding the judgment?

3. Whether the CAFC erred in not relieving a citizen of a final judgment for misrepresentation by a giant corporation or for any reason that justifies relief for a judge denying the citizen a hearing according to law, depriving the citizen of patent property rights, was Petitioner deprived of the protections of FRCP Rule 60(b)?

4. Whether the CAFC erred in abridging a citizen's liberty rights so that she could not address her medical condition to which the CAFC had been given proper notice, exacerbating her illness and arbitrarily dismissing the appeal without a hearing or an opening brief, depriving her of her patent property rights without any compensation from a giant corporation, was Petitioner deprived of the protections of the Bill of Rights and 35 U.S.C § 282 of the Patent Act, thereby voiding the judgment?

5. Whether the CAFC erred in not requiring a judge to avoid actual impropriety and the appearance of impropriety in denying a citizen a hearing according to law, depriving the citizen of patent property rights without any compensation from a giant corporation, after abridging liberty rights of a citizen, was Petitioner deprived of the protections of 28 U.S.C. § 455, Canons 2 and 3 and the Bill of Rights?

No CAFC opinion or argument. Appeal was dismissed for failure to file opening brief in compliance with the court's rules, waiver of respondent JP Morgan Chase & Co. filed 12/3/15, conference 1/8/16.

Cert. petition filed 11/19/15. Petition denied 1/11/16.


Morgan v. Global Traffic Technologies LLC, No. 15-602

Questions Presented:

As a case of first impression, does the procedure required when a patent, cited as prior art in and accused of infringing a subsequently issued patent, include construction of the scope of the claims of the subsequent patent in light of the prior patent plus comparison of differences between the accused device and the one claimed?

Does the standard set forth in Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831 (2015) apply retroactively in this case, pending on appeal when Teva was decided?

Cert. petition filed 11/5/15, waiver of respondent Global Traffic Technologies LLC filed 11/20/15, conference 1/8/16. Petition denied 1/11/16.

CAFC Opinion, CAFC Argument


SpeedTrack, Inc. v. Office Depot, Inc., No. 15-461

Question Presented:

In Taylor v. Sturgell, 553 U.S. 880 (2008), this Court confirmed that there are "'uniform federal rule[s]' of res judicata." 553 U.S. at 891. In the decision below, however, the Federal Circuit adopted its own unique form of patent-specific preclusion. This new form of preclusion bars entirely new issues and claims that no court has ever resolved. The Federal Circuit grounded this unique legal doctrine in its reading of Kessler v. Eldred, 206 U.S. 285 (1907), an anti-suit injunction case decided during "the heyday of the federal mutuality of estoppel rule." MGA, Inc. v. Gen. Motors Corp., 827 F.2d 729, 733 (Fed. Cir. 1987). The Federal Circuit has directly acknowledged that its departure from generally applicable legal principles is "questionable" (Brain Life, LLC v. Elekta Inc., 746 F.3d 1045, 1057-1058 (Fed. Cir. 2014)), but the court has nevertheless now twice confirmed that it will not apply traditional preclusion rules "unless and until the Supreme Court overrules [Kessler]." App., infra, 23a; Brain Life, 746 F.3d at 1058. The rules of preclusion are accordingly "[dis]uniform" in the Federal Circuit alone.

The question presented is:

Whether, in direct conflict with the Third and Fourth Circuits, the Federal Circuit erred in construing Kessler to bar new issues and new claims that would survive the "uniform" rules of preclusion applied by every other circuit in all non-patent cases.

Cert. petition filed 10/8/15, waiver of respondent Office Depot, Inc. filed 10/14/15, response requested 11/3/15, conference 1/8/16. Petition denied 1/11/16.

CAFC Opinion, CAFC Argument


OIP Technologies, Inc. v Amazon, Inc., No. 15-642

Questions Presented:

1. Whether all methods that improve existing technological processes are equally eligible for patent protection under 35 U.S.C. § 101, and the Federal Circuit erred by distinguishing a method of testing demand to improve a pricing process from Diehr's method of testing temperature to improve the timing of a rubber curing process by finding that only the business-related process was ineligible.

2. Whether a court may grant a motion to dismiss a patent infringement suit for failure to claim patent-eligible subject matter under 35 U.S.C. § 101 based on factual determinations that are inconsistent with the facts in the complaint, notwithstanding the requirement of Federal Rule of Civil Procedure 12 that all facts in the complaint be taken as true.

Cert. petition filed 11/12/15, waiver of respondent Amazon.com, Inc. filed 11/17/15, conference 12/11/15. Petition denied 12/14/15.

CAFC Opinion, CAFC Argument


Allvoice Developments US, LLC v. Microsoft Corp., No. 15-538

Questions Presented:

1. Do patent claims addressed directly to software that is inherently in a computer-readable medium qualify as a "manufacture" under 35 U.S.C. § 101 without express recitation of the medium?

2. Does a district court abuse its discretion when it refuses to consider evidence of patent infringement as described in a patentee's infringement contentions on the ground that those contentions did not refer to the specific part of the accused product corresponding to a particular claim element by name when (a) the accused infringer never objected to the adequacy of the disclosure, (b) the patentee nevertheless identified the specific part by name during discovery, and (c) there is no reason, such as bad faith or prejudice to the accused infringer, for excluding the evidence as a sanction?

Cert. petition filed 10/23/15, waiver of respondent Microsoft Corp. filed 11/17/15, conference 12/11/15. Petition denied 12/14/15.

CAFC Opinion, CAFC Argument


Fivetech Technology Inc. v. Southco, Inc., No. 15-381

Questions Presented:

In United States v. Adams, 383 U.S. 39, 49 (1966), this Court stated that "it is fundamental that [patent] claims are to be construed in light of the specifications, and both are to be read with a view to ascertaining the invention." In Markman v. Westview Instruments, Inc., 517 U.S. 370, 389 (1996), this Court referenced the required "standard construction rule that a [claim] term can be defined only in a way that comports with the instrument as a whole." (Emphasis added). In Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005) (en banc), the Federal Circuit rejected a line of Federal Circuit opinions that limited the role of the specification in defining claim terms only to instances of explicit redefinitions or explicit disavowals of claim scope. However, since Phillips, the Federal Circuit remains divided as to the role of the specification and file history (intrinsic evidence) in construing claim terms. Specifically, some panels of the Federal Circuit have adopted a rigid standard of "lexicography and disavowal" for defining claim terms which limits the relevance of the intrinsic evidence only to those instances of explicit redefinition of a claim term or explicit disavowal of claim scope. See, e.g., GE Lighting Solutions, LLC v. Agilight, Inc., 750 F.3d 1304,1308-09 (Fed. Cir. 2014) ("The standards for finding lexicography and disavowal are exacting."). This has raised the following questions for this Court.

  1. Whether it is proper for the Federal Circuit to limit the role of the intrinsic evidence in construing patent claims under the exacting "lexicography and disavowal" standard.
  2. Whether the Federal Circuit's exacting "lexicography and disavowal" standard improperly circumscribes the objective standard of the person of ordinary skill in the art in construing claim terms.

Cert. petition filed 9/28/15, conference 12/4/15. Petition denied 12/7/15.

CAFC Opinion, CAFC Argument


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