United States: Patent Law And The Supreme Court: Patent Certiorari Petitions Denied In 2016 (October 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.

Recently pending, granted and denied certiorari petitions

Essociate, Inc. v. Clickbooth.com, LLC, No. 16-195

Questions Presented:

A patent claiming simply an instruction to implement an abstract idea on a computer is ineligible for protection under 35 U.S.C. § 101. The courts below, and hundreds of other decisions, have broadened that holding to find abstract ideas and lack of inventive concepts even in patents that solve specific technological problems using new processes. Should this Court clarify the meanings of "abstract idea" and "inventive process"?

Cert. petition filed 8/8/16, waiver of respondent Kjell Olmarker filed 7/18/16, conference 9/26/16. Petition denied 10/3/16.

CAFC Opinion, CAFC Argument

Genetic Technologies Ltd. v. Merial L.L.C., No. 15-1518

Questions Presented:

As of the priority date for U.S. Patent No. 5,612,179 in 1989, scientists identified DNA haplotypes through the direct identification of allelic variants within coding DNA regions. Scientists ignored non-coding DNA because they believed those regions were merely accumulated debris or "junk DNA." Dr. Malcolm Simons discovered that, in the DNA of unrelated individuals, a polymorphism in a non-coding DNA region and a coding region allele could be inherited together. This natural phenomenon is known as "linkage disequilibrium." The discovery prompted Dr. Simons to invent a new and useful process for detecting a coding region allele of a multi-allelic genetic locus by interrogating a non-coding DNA sequence that is in linkage disequilibrium with that multi-allelic genetic locus. Dr. Simons' invention, as reflected in claim 1 of the '179 patent, was advantageous for a number of reasons, including that it was more reliable and quicker than prior art identification processes that used direct identification of allelic variants.

On de novo review, a Federal Circuit panel evaluated the patent-eligibility of claim 1 in response to a Rule 12(b)(6) motion and under the framework established by Mayo Collaborative Servs. v. Prometheus Labs., Inc., 132 S. Ct. 1289 (2012), and Alice Corp. Pty. Ltd. v. CLS Bank Int'l, 134 S. Ct. 2347 (2014). The panel found that claim 1 is directed to a "natural law" comprising both: (1) "the relationship between non-coding and coding sequences in linkage disequilibrium"—undisputedly a naturally occurring phenomenon; and (2) "the tendency of such non-coding sequences to be representative of the linked coding sequences"—which the parties disputed as a matter of fact, and GTG argued was Dr. Simons' application of the natural occurring phenomenon to achieve his intended purpose.

The panel also found the claimed laboratory techniques to be used in a routine and conventional manner, although it recognized "that at the time the '179 patent was filed, no one was 'using the non-coding sequence as a surrogate marker for the coding region allele . . .' [and claim 1] was found by the patent examiner to be novel over the prior art and survived multiple rounds of reexamination."

The panel then affirmed the Delaware District Court's judgment that claim 1 is patent-ineligible under 35 U.S.C. § 101.

The questions presented are:

  1. Whether the Federal Circuit properly concluded—in conflict with other decisions of the Federal Circuit and this Court—that the definition of a patent-ineligible concept under the Mayo/Alice framework may include both a natural phenomenon and an inventor's ingenuity in applying that natural phenomenon to a new and useful purpose?
  2. Whether a Rule 12(b)(6) motion may be properly granted based on patent-ineligibility—as the Federal Circuit determined below in conflict with other Federal Circuit decisions—when the record plausibly demonstrates that the claimed process inventively applies a natural phenomenon for a new and useful purpose, the claimed process does not improperly preempt the natural phenomenon, and the claimed process is not routine and conventional?

Cert. petition filed 8/8/16, waiver of respondent Bristol-Myers Squibb Co. filed 8/15/16, waiver of respondents Merial L.L.C., et al. filed 8/15/16, conference 9/26/16. Petition denied 10/3/16.

CAFC Opinion, CAFC Argument

In re Tobinick, No. 15-1544

Questions Presented:

  1. In an interference, whether the Patent Trial and appeal board can deny a Party's compelling request to file a motion and actual evidence showing that the opposing party committed inequitable conduct by submitting unmistakably false expert witness testimony.
  2. Whether, despite determining that the "inequitable conduct may be revisited," the Patent Trial and appeal board erred in denying Tobinick's Motion 5 to exclude evidence (four affidavits by Olmarker's expert, Dr. Andersson) explaining that the unmistakably false testimony was submitted intentionally and as part of a deliberate scheme to mislead the Patent Trial and appeal board.

Cert. petition filed 6/6/16, waiver of respondent Kjell Olmarker filed 7/18/16, conference 9/26/16. Petition denied 10/3/16.

CAFC Opinion, CAFC Argument

Driessen v. Sony Music Ent., No. 15-1518

Questions Presented:

The federal courts in this case evaluated the plaintiffs' patent claims using a corollary to the inter partes review called a "mini-Markman hearing." This type of trial proceeding has become a shortened alternative to fully litigated infringement disputes. In mini Markman proceedings, courts construe the meaning of claim terms prior to fact discovery without consideration of prior art, field of endeavor, anticipation of invention, or infringement. Some judges and patent lawyers have called it an "early claim dispositive" hearing with the goal of "quick" and "cost-effective" conclusion to the litigation. A characteristic of the proceeding is that any meaning that can be imparted from the claim terms or phrases themselves can be weighed contra preferentem against the patent holder.

Unlike the broadest reasonable interpretation standard as used in inter partes review, mini-Markman proceedings use what is known as the acontextual branch of the plain and ordinary meaning standard. Procedural removal of the prior art field of endeavor from consideration while at the same time maintaining the rule against importation of limitations from the specification, by its very design, produces an imbalance between the meaning of claim terms in the claim itself and the meaning imparted by the invention. The guarding against importation of limitations from the specification stands alone and the invention carries no effect on the meaning of the claim terms.

In a quick decision styled "non-precedential" the Federal Circuit affirmed the early claim dispositive mini-Markman proceedings, withdrawing from the rule that we construe claim terms in light of the field of invention according to the understanding of a person having ordinary skill in the art. The result is that any and all dictionary definitions that could be implied from the claim itself will impart meaning to the claim. Federal Circuit approval will facilitate more mini-Markman proceedings, giving rise to the questions presented as follows:

  1. Whether the court of appeals erred in affirming the exclusion of the invention and field of endeavor from consideration of claim context during early dispositive claim construction proceedings using the plain and ordinary meaning standard?
  2. If eliminating the invention and art field from consideration of claim context during early dispositive claim construction is appropriate, whether the court of appeals erred in affirming the construing the scope of claims contra preferentem based on unreasonable dictionary implications when the doctrine of claim differentiation and reasonable implications gleaned from the specification and drawings give the claim terms meaning in light of the invention, while avoiding the importation of limitations from the specification?
  3. Whether the Court should hold the petition without action until an opinion may be delivered in Cuozzo Speed Techs. v. Lee, U.S. 15-446 and/or grant the petition, vacate the judgment below, and remand to the Federal Circuit for further consideration in light of a decision in Cuozzo Speed Techs. v. Lee?

Cert. petition filed 6/15/16, waiver of respondent Sony Music Entertainment, et al. filed 7/15/16, conference 9/26/16. Petition denied 10/3/16.

CAFC Opinion, No CAFC Argument

Trading Techs. Intern. Inc. v. Lee, No. 15-1516

Question Presented:

Did the court of appeals err in denying mandamus and allowing the Patent Trial and Appeal Board ("PTAB") to conduct a trial outside of its jurisdiction in a covered business method ("CBM") review on a patent that is clearly and indisputably not a CBM patent, in contravention of the Leahy-Smith America Invents Act ("ALA")?

Cert. petition filed 6/16/16, waiver of respondent Michelle K. Lee, Director, United States Patent and Trademark Office filed 6/30/16, conference 9/26/16. Petition denied 10/3/16.

No CAFC Opinion (appeal is from denial of write of mandamus), No CAFC Argument

Jericho Sys. Corp. v. Axiomatics, Inc., No. 15-1502

Question Presented:

Whether, under this Court's precedent in Alice Corp. Party Ltd. v. CLS Bank International, 134 S. Ct. 2347 (2014), and Mayo Collaborative Services v. Prometheus Laboratories, Inc., 132 S. Ct. 1289 (2012), a patent may be invalidated as an "abstract idea" under 35 U.S.C. § 101 when it claims a specific implementation and does not preempt other uses of the abstract idea.

Cert. petition filed 6/10/16, waiver of respondents Axiomatics, Inc. filed 6/15/16, conference 9/26/16. Petition denied 10/3/16.

CAFC Opinion, CAFC Argument

MacDermid Printing Solutions, LLC v. E.I. DuPont De Nemours & Co., No. 15-1499

Question Presented:

Whether the Federal Circuit has erred in holding that there "must" be a proven "reasonable expectation of success" in a claimed combination invention in order for it to be held "obvious" under 35 U.S.C. § 103(a).

Cert. petition filed 6/9/16, waiver of right of respondent E.I. DuPont de Nemours & Company filed 6/14/16, conference 9/26/16. Petition denied 10/3/16.

CAFC Opinion, CAFC Argument

Commil USA, LLC v. Cisco Sys., Inc., No. 15-1446

Questions Presented:

  1. Must the Federal Circuit follow this Court's holding in Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000), a non-patent case, regarding which evidence must be disregarded and which evidence must be credited when reviewing a decision on judgment as a matter of law regarding patent infringement?
  2. Whether, and under what circumstances, the Seventh Amendment permits the Federal Circuit to refuse to credit the technical testimony of qualified expert—unchallenged under Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993)—when overturning a jury's verdict on the factual issue of direct infringement.
  3. Whether, and under what circumstances, the Seventh Amendment permits the Federal Circuit to reject the evidentiary support for a qualified technical expert's testimony that the Accused Products operate in an infringing manner under the applicable claim construction and overturn a jury's verdict of infringement supported by that testimony.

Cert. petition filed 5/27/16, waiver of respondent Cisco Systems, Inc. filed 6/2/16, response requested 6/15/16, conference 9/26/16. Petition denied 10/3/16.

CAFC Opinion, CAFC Argument

Amphastar Pharmaceuticals, Inc. v. Momenta Pharmaceuticals, Inc., No. 15-1402

Question Presented:

The Hatch-Waxman Act safe harbor provides that "[i]t shall not be an act of infringement to . . . use . . . a patented invention . . . solely for uses reasonably related to the development and submission of information under a Federal law which regulates the manufacture, use, or sale of drugs[.]" 35 U.S.C. § 271(e)(1). The question presented is:

Whether the safe harbor protects a generic drug manufacturer's bioequivalence testing that is performed only as a condition of maintaining FDA approval and is documented in records that must be submitted to the FDA upon request.

Cert. petition filed 5/17/16, waiver of respondent Momenta Pharmaceuticals, Inc. filed 5/23/16, conference 6/9/16, response requested 5/31/16, conference 9/26/16. Petition denied 10/3/16.

CAFC Opinion, CAFC Argument

Commonwealth Scientific and Indus. Research Organisation v. Cisco Sys., Inc., No. 15-1440

Question Presented:

The Patent Act provides that a "[u]pon finding for the claimant the court shall award the claimant damages adequate to compensate for the infringement . . . ." 35 U.S.C. § 284. In contravention of this broad language, the Federal Circuit has erected a rigid set of legal rules to control the determination of damages by triers of fact. As a result, the Federal Circuit now exercises de novo review over inherently factual questions, resulting in routine reversals.

This Court has held with regard to another patent remedies provision that it is improper for the Federal Circuit to "superimposed an inflexible framework onto statutory text that is inherently flexible." Octane Fitness, LLC v. ICON Health & Fitness, Inc., 134 S. Ct. 1749, 1756 (2014). And this Court is considering related questions in relation to another portion of section 284 in Stryker Corp. v. Zimmer, Inc., No. 14-1520, and Halo Electronics, Inc. v. Pulse Electronics, Inc., 14-1513 (argued Feb. 23, 2016).

The question presented is:

Is the Federal Circuit's promulgation of rigid legal rules to control the weight to be given by the trier of fact to evidence of patent infringement damages proper under 35 U.S.C. § 284?

Cert. petition filed 5/25/16, waiver of respondent Cisco Systems, Inc. filed 6/3/16, conference 6/26/16. Petition denied 6/27/16.

CAFC Opinion, CAFC Argument

Interval Licensing LLC v. Lee, No. 15-716

Question Presented:

Can the Patent and Trademark Office appropriately apply the "broadest reasonable interpretation" standard in construing patent claims in post-grant validity challenges?

Cert. petition filed 11/27/15, conference 4/15/16, conference 6/26/16. Petition denied 6/27/16.

CAFC Opinion, CAFC Argument

Versata Dev. Group, Inc. v. SAP Am., Inc., No. 15-1145

Questions Presented:

The Leahy-Smith America Invents Act, Pub. L. No. 112-29, 125 Stat. 284 (2011) ("AIA"), created a new post-grant procedure at the US Patent and Trademark Office to address "the validity of covered business method patents." Id. § 18(a)(1). The AIA defines a "covered business method patent" ("CBM") as "a patent that claims a method or corresponding apparatus for performing data processing or other operations used in the practice, administration, or management of a financial product or service." Id. § 18(d)(1). The statute exempts "patents for technological inventions" from CBM review. Id. The questions presented are:

  1. Whether the phrase "covered business method patent"—and "financial product or service"—encompasses any patent claim that is "incidental to" or "complementary to a financial activity and relates to monetary matters."
  2. Whether the Federal Circuit's standard for identifying patents falling within the "technological inventions" exception departs from statutory text by looking to whether the patent is valid, as opposed to whether it is "technological."
  3. Whether a software-related invention that improves the performance of computer operations is patent-eligible subject matter.
  4. Whether, as this Court will decide in Cuozzo Speed Techs., LLC v. Lee, No. 15-446, the Patent Trial and Appeal Board should give claim terms their broadest reasonable construction in post-grant adjudicatory proceedings, or should instead give them their best construction.

Cert. petition filed 3/15/16, conference 6/23/16. Petition denied 6/27/16.

CAFC Opinion, CAFC Argument

Sequenom, Inc. v. Ariosa Diagnostics, Inc., No. 15-1182

Question Presented:

In 1996, two doctors discovered cell-free fetal DNA (cffDNA) circulating in maternal plasma. They used that discovery to invent a test for detecting fetal genetic conditions in early pregnancy that avoided dangerous, invasive techniques. Their patent teaches technicians to take a maternal blood sample, keep the non-cellular portion (which was "previously discarded as medical waste"), amplify the genetic material within (which they alone knew about), and identify paternally inherited sequences as a means of distinguishing fetal and maternal DNA. Notably, this method does not preempt other demonstrated uses of cffDNA.

The Federal Circuit "agree[d]" that this invention "combined and utilized man-made tools of biotechnology in a new way that revolutionized prenatal care." Pet. App. 18a. But it still held that Mayo Collaborative Servs. v. Prometheus Labs., 132 S. Ct. 1289 (2012), makes all such inventions patent-ineligible as a matter of law if their new combination involves only a "natural phenomenon" and techniques that were "routine" or "conventional" on their own. Multiple judges wrote separately below to explain that while this result was probably not intended by Mayo, it controlled, and only this Court could now "clarify" Mayo's reach to prevent a "crisis" in life-science innovation.

The Question Presented is:

Whether a novel method is patent-eligible where: (1) a researcher is the first to discover a natural phenomenon; (2) that unique knowledge motivates him to apply a new combination of known techniques to that discovery; and (3) he thereby achieves a previously impossible result without preempting other uses of the discovery?

Cert. petition filed 3/21/16, conference 6/23/16. Petition denied 6/27/16.

CAFC Opinion, CAFC Argument

Stephenson v. Game Show Network, LLC, No. 15-1187

Question Presented:

Can the Patent and Trademark Office appropriately apply the "broadest reasonable interpretation" standard rather than the plain and ordinary meaning standard used by the federal courts in construing patent claims in inter partes reviews challenging patent validity?

Cert. petition filed 3/14/16, conference 5/26/16, conference 6/23/16. Petition denied 6/27/16.

CAFC Opinion, CAFC Argument

Shukh v. Seagate Technology, LLC, No. 15-1285

Question Presented:

In FilmTec Corp. v. Allied-Signal, Inc., 939 F.2d 1568 (Fed. Cir. 1991), the Federal Circuit ruled without explanation that an agreement for the assignment of inventions that uses the words "hereby assign" automatically effects a present assignment of future inventions even though those inventions have not been conceived and do not exist at the time the agreement is signed. The unexplained rationale, contrary to ancient rules of patent law and equity, was that such an assignment surrenders all concrete interests in an invention, thus depriving inventors of standing under 35 U.S.C. § 256 to correct inventorship of patents for those inventions from which they have wrongfully been omitted, and preventing the inventors from regaining their default ownership of the inventions and patents.

The question presented is whether FilmTec's "automatic assignment" rule should be overruled because it extinguishes inventors' constitutional and statutory rights to inventorship and ownership, especially in view of criticisms expressed by three Justices of this Court in Bd. of Trs. of theLeland Stanford Jr. University v. Roche Molecular Sys., Inc., 131 S. Ct. 2188, 2199 & 2203 (2011) (Stanford), and the reservation of that issue by the Court. Id. at 2194, n.2.

Cert. petition filed 3/16/16, conference 6/23/16. Petition denied 6/27/16.

CAFC Opinion, CAFC Argument

Automotive Body Parts Ass'n v. Ford Global Technologies, LLC, No. 15-1314

Question Presented:

Whether a court order can be amended under Federal Rule of Civil Procedure 60(a) based solely on the issuing judge's subsequent statement of intent when there is no contemporaneous record evidence or other circumstance supporting the issuing judge's subsequent statement of intent and a party's reliance interests are adversely affected by the amendment.

Cert. petition filed 4/21/16, waiver of respondent Ford Global Technologies, LLC filed 5/13/16, conference 6/23/16. Petition denied 6/27/16.

No CAFC Opinion, No CAFC Argument

Samsung Electronics Co., Ltd. v. Apple Inc., No. 15-1386

Question Presented:

Should the Court grant the petition, vacate the judgment below, and remand to dismiss the appeal as moot, in accordance with United States v. Munsingwear, Inc., 340 U.S. 36 (1950), where the Federal Circuit's opinion requiring a permanent injunction is mooted by a later Federal Circuit opinion eliminating all basis for liability by holding two of the three patents at issue invalid and the other one not infringed?

Cert. petition filed 5/13/16, conference 6/23/16. Petition denied 6/27/16.

CAFC Opinion, CAFC Argument

Globus Medical, Inc. v. Bianco, No. 15-1203

Question Presented:

Did the United States Court of Appeals for the Federal Circuit have jurisdiction over an appeal from the United States District Court for the Eastern District of Texas rather than transferring the case to the Fifth Circuit, where that appeal presented only questions of state trade secret law, and the appeal therefore was not a "civil action arising under . . . any Act of Congress relating to patents" as required by 28 U.S.C. § 1295(a)(1) as amended by the AIA?

Cert. petition filed 3/22/16, waiver of respondent Sabatino Bianco filed 3/28/16, conference 4/22/16, respond requested 4/18/16, conference 6/16/16. Petition denied 6/20/16.

CAFC Opinion, CAFC Argument

Newegg Inc. v. MacroSolve, Inc., No. 15-1369

Questions Presented:

  1. Whether, in resolving a motion for attorneys' fees under 35 U.S.C. § 285 brought by a defendant, the Eastern District of Texas and the Federal Circuit may disregard this Court's analytical framework provided in Octane Fitness, LLC v. ICON Health & Fitness, Inc., 134 S. Ct. 1749, 1756 (2014) ("Octane"), and create and apply a special, heightened burden of proof whenever the patent plaintiff avoids adjudication on the merits by unilaterally dismissing its case before judgment?
  2. Whether the Eastern District of Texas rule requiring proof by clear and convincing evidence that a lawsuit is frivolous improperly limits or circumvents Octane, in which this Court rejected both requirements?

Cert. petition filed 5/9/16, waiver of respondent MacroSolve, Inc. filed 5/16/16, conference 6/9/16. Petition denied 6/13/16.

CAFC Opinion, CAFC Argument

Cubist Pharmaceuticals, Inc. v. Hospira, Inc., No. 15-1210

Questions Presented:

In Graham v. John Deere Co. of Kansas City, 383 U.S. 1 (1966), this Court recognized the relevance of "objective indicia" of nonobviousness (also known as "secondary considerations")—including the long-felt need for the patented invention, the failure of others to arrive at the invention, and the invention's subsequent commercial success—in determining whether a patent's claims were obvious to a person of ordinary skill in the art. In this case, the district court created, and the Federal Circuit affirmed, two categorical limitations on the consideration of objective indicia of nonobviousness that exist nowhere in the Patent Act or this Court's jurisprudence.

The questions presented are:

  1. Whether a court may categorically disregard objective indicia of a patent's nonobviousness merely because the considerations apply to one commercial embodiment of a patented invention, rather than all embodiments.
  2. Whether a court may categorically disregard objective evidence of a long-felt need for a patented invention merely because the need is not expressly recited in the patent claims.

Cert. petition filed 3/28/16, conference 5/26/16. Petition denied 5/31/16.

CAFC Opinion, CAFC Argument

WilmerHale represents petitioner Cubist Pharmaceuticals, Inc.

Vehicle Intelligence and Safety LLC v. Mercedes-Benz USA, LLC, No. 15-1201

Questions Presented:

Vehicle Intelligence and Safety LLC respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Federal Circuit, that while quoting the test in Alice Corp. v. CLS Bank Int'l, 134 S. Ct. 2347 (2014) in deciding patent eligibility under 35 U.S.C. § 101, has however in actual practice, multiple-mutated this test into a universal pesticide to kill and invalidate virtually all patents. The first mutation makes every invention's inevitable use or application of an abstract idea (as a tool or stepping stone for a greater goal) in a claim element automatic, conclusive proof of preemption of the abstract idea by the entire patent claim. The second mutation demands teaching all the invention implementation details, which implicitly requires that every patent and every patent claim go back and re-teach in a vacuum the already known prior art all over again in order to have any qualifying inventive concepts for Alice test patent eligibility.

  1. Does the Supreme Court's Alice test for 35 U.S.C. § 101 patent eligibility, or 35 U.S.C. § 101, actually state that use or application of an abstract idea is automatic, conclusive proof of preemption of the abstract idea?
  2. Does the Supreme Court's Alice test for 35 U.S.C. § 101 patent eligibility actually require any patent which improves on already known prior art technology, to re-teach in a vacuum the already known prior art technology all over again in the specification and in each claim in order to have any inventive concepts that qualify for court recognition to satisfy the second step of the Supreme Court's Alice test?
  3. Doesn't a patent satisfy step two of the Supreme Court's Alice test for 35 U.S.C. § 101 patent eligibility by having independent patent claims that include multiple explicitly-stated inventive concepts?

Cert. petition filed 3/24/16, conference 5/26/16. Petition denied 5/31/16.

CAFC Opinion, No CAFC Argument

Dow Chemical Co. v. Nova Chemicals Corp. (Canada), No. 15-1160

Question Presented:

Whether factual findings underlying a district court's determination on the definiteness of a patent claim under the Patent Act, 35 U.S.C. 112, like a district court's factual findings underlying construction of a patent claim, are subject to appellate review only for clear error or substantial evidence rather than de novo review.

Cert. petition filed 3/16/16, conference 5/19/16. Petition denied 5/23/16.

CAFC Opinion, CAFC Argument

Cloud Satchel, LLC v. Barnes & Noble, Inc., No. 15-1161

Questions Presented:

  1. Whether the decision below violates Article I, section 8 of the Constitution by ignoring the scope of patent eligibility adopted by Congress in 35 U.S.C. § 101 as interpreted by this Court?
  2. Whether the lower courts incorrectly applied both steps of the Alice Corporation v. CLS Bank framework for Section 101 to the patent claims at issue in contravention of this Court's jurisprudence on patent-eligibility, as well as 35 U.S.C. § 103, and related precedent of the Court on patent validity, including Graham v. John Deere?
  3. Whether the Federal Circuit's application of its modified Federal Rule of Appellate Procedure 36 to affirm a trial court decision based on Alice effectively eliminate Cloud Satchel's right to appeal as set forth in 28 U.S.C. § 1295(a)?

Cert. petition filed 3/16/16, waiver of respondent Amazon.com filed 3/22/16, waiver of respondent Barnes & Noble, Inc. filed 3/23/16, conference 4/22/16. Petition denied 4/25/16.

CAFC Opinion, CAFC Argument

To read this article in full, please click here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.