Posts in US Supreme Court

Supreme Court Denies Centripetal’s Petition Asking for Clarification on Judicial Recusal Statue

The U.S. Supreme Court today denied certiorari in Centripetal Networks v. Cisco Systems, Inc., a case that asked the Court to consider the question “[w]hether placing stock in a blind trust satisfies [28 U.S.C.] §455(f) and, if not, whether…[it] constitutes harmless error under Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847 (1988).” James Edwards, a consultant to Centripetal and to amici Eagle Forum ELDF and Committee for Justice, as well as head of amicus, Conservatives for Property Rights, wrote on IPWatchdog last week that Centripetal and other amici hoped the High Court would take the case to clarify the judicial recusal statute. The Federal Circuit’s June 2022 ruling “cast doubt upon the judiciary’s impartiality and [risks] public confidence in the judicial system,” Edwards wrote, summarizing the petitioner’s argument.

SCOTUS to Consider Granting Centripetal’s Cert Petition in Patent Infringement Qua Judicial Recusal Case

The U.S. Supreme Court will this Friday, December 2, consider whether to grant certiorari in the case of Centripetal Networks Inc. v. Cisco Systems Inc. What began as a patent infringement case has swerved into judicial ethics waters, due to the ruling of the Federal Circuit Court of Appeals. The cert decision holds significant consequences, particularly for patent owners and inventors who find themselves the target of patent infringement, sue to assert their patent rights, and whom patent infringers then pull into a litigation vortex between federal courts and administrative tribunals at the U.S. Patent and Trademark Office (USPTO).

Juno Asks Supreme Court to Reconsider Denial of Petition on Section 112 Question in Light of Amgen Review

Following the denial of Juno Therapeutics’ petition to the U.S. Supreme Court earlier this month, Juno last week petitioned the High Court for rehearing, arguing that the grant of certiorari in Amgen v. Sanofi warrants reconsideration. Juno explained that the issues presented in the Amgen case “are tightly related, and the outcome in Amgen is likely to at least affect, if not be outcome-determinative of, this case.” Juno is asking that the Court grant the petition for rehearing, vacate the denial of certiorari, and hold the case pending the outcome in Amgen.

NYIPLA Tells Supremes IP Lawyers Need Attorney-Client Privilege for Dual-Purpose Communications

The New York Intellectual Property Law Association (NYIPLA) filed an amicus brief last Thursday in the U.S. Supreme Court in In re Grand Jury. The petition was filed in April this year, presenting the Supreme Court with the question of whether communication involving both legal and non-legal advice should be protected by attorney-client privilege. The question has broad implications for attorney-client privileges, especially for intellectual property lawyers, says the NYIPLA brief. NYIPLA  makes the case that the Supreme Court should adopt “a rule which protects a dual-purpose communication if a significant purpose of the communication is to obtain or provide legal advice.” Currently, the appeals courts are divided as to whether this rule should be adopted versus one that protects communications only if legal advice was the dominant purpose behind the communication.

Jack Daniel’s Will Get Its Shot at SCOTUS Review Against Dog Toy Maker

The U.S. Supreme Court yesterday granted a petition filed in August this year by Jack Daniel’s Properties, Inc. seeking clarification on whether the First Amendment protects VIP Products, LLC, a maker of dog toys that made humorous use of Jack Daniel’s trademarks for commercial purposes, against claims of infringement and dilution. The High Court previously denied Jack Daniel’s petition in January of 2021, and the U.S. Court of Appeals for the Ninth Circuit “summarily affirmed” the district court’s summary judgment ruling for VIP on remand. In its ruling in 2020, the Ninth Circuit said VIP’s dog toy mimicking a Jack Daniel’s whiskey bottle was an expressive work entitled to First Amendment protection, reversing the district court’s initial holding that the toy infringed and diluted Jack Daniel’s marks and remanding the case back to the district court for a determination on the merits of the infringement claim.

Ninth Circuit Affirms Validity of Unicolors’ Copyright Registration on Remand, But H&M Scores Big on Remittitur Calculations

On November 10, the U.S. Court of Appeals for the Ninth Circuit ruled in Unicolors, Inc. v. H&M Hennes & Mauritz, L.P. following remand from the U.S. Supreme Court, which clarified the knowledge standard required for invalidating copyright registrations based on inaccuracies in the registration application. In light of that ruling, the Ninth Circuit upheld Unicolors’ ability to maintain its copyright infringement action against H&M because the plaintiff did not have the requisite knowledge of the legal inaccuracy on its registration application to invalidate the registration. While the Ninth Circuit dismissed most of H&M’s arguments on remand, the appellate court did agree with H&M that the district court’s post-remittitur damages were improperly calculated, leading to a significant reduction in the amount awarded to Unicolors in the case.

SCOTUS Takes on Scope of Enablement Inquiry in Amgen v. Sanofi: Implications for Pharma/ Biotech and Beyond

On November 4, the U.S. Supreme Court granted Amgen’s petition for certiorari against the advice of the U.S. government – taking up Amgen’s challenge to the Federal Circuit’s enablement review of its PCSK9 antibody patents covering evolocumab (Repatha®). In its petition, Amgen asserts that the Federal Circuit has gone too far in invalidating its PCSK9 antibody patents by imposing a disclosure burden beyond the requirements of 35 U.S.C. § 112. Notably, the Supreme Court, albeit with a different composition, recently declined to hear several other similar cases raising issues with the Federal Circuit’s enablement precedent.

Tillis Bill Would Restore Needed Clarity and Predictability in Patent Eligibility Law

Over the last 15 years, the United States Supreme Court has mutated patent eligibility into an impossibly complex and confusing mess. The Court’s current eligibility test strays far from Congress’s original intent, erodes trust in predictability, and has left many remarking that innovation in the United States is falling behind due to uncertainty of patent eligibility law. Even more troubling, the resulting uncertainty of patent ineligibility for large swaths of innovation in critical technology areas, including artificial intelligence, poses significant risks to U.S. competitiveness, economic growth and national security. The Court has had opportunities to rectify its patent sinkhole but recently declined another chance to mend the chaos. When the Court denied certiorari in American Axle v. Neapco—despite the Solicitor General’s plea to hear the case—it became clear that Congress must step in to rescue U.S. innovation.

Supreme Court’s Denial of Juno Therapeutics is Another Blow to the Life Science Patent Industry

On November 7, the U.S. Supreme Court issued an order list showing that it had denied the petition for writ of certiorari filed in Juno Therapeutics, Inc. v. Kite Pharma, Inc. In denying the petition, the Court refused yet again to clarify the Federal Circuit’s questionable interpretation of U.S. patent code, this time within the context of the written description requirement of 35 U.S.C. § 112, and leaves in place an appellate court ruling that many believe will be very damaging to the United States’ life sciences innovation sector.

Supreme Court Grants Two IP Cases, Including Amgen v. Sanofi on Enablement

The U.S. Supreme Court granted petitions for certiorari in two intellectual property cases Friday, one dealing with the limits of extraterritorial application of the Lanham Act and another asking the High Court to weigh in on whether “enablement” means a specification must enable those skilled in the art “to reach the full scope of claimed embodiments” without undue experimentation.

Jim Jordan Letter to Vidal on West Virginia v. EPA Could Implicate USPTO’s Section 101 Subject Matter Eligibility Guidelines

On November 1, Representative Jim Jordan (R-OH) sent letters to several federal agency heads, including Kathi Vidal, Director of the U.S. Patent and Trademark Office (USPTO), asking those officials what their agencies had done to respond to the U.S. Supreme Court’s mandate in West Virginia v. Environmental Protection Agency decided this June. While Jordan’s letter is clearly responding to political developments during the Biden Administration, West Virginia has garnered interest among some patent industry stakeholders responding to recent USPTO rulemaking surrounding subject matter eligibility under 35 U.S.C. § 101.

Amici Back Jump Rope Company in Supreme Court Case

Three amici filed briefs last week in Jump Rope System’s petition asking the U.S. Supreme Court to review a U.S. Court of Appeals for the Federal Circuit (CAFC) decision upholding a Patent Trial and Appeal Board (PTAB) finding of unpatentability. Eagle Forum Education and Legal Defense Fund and the Fair Inventing Fund filed briefs in support of the jump rope company while DivX filed in support of neither party .

Jump Rope Systems, the inventor of a novel jump rope system, is petitioning the Supreme Court to clarify “whether, as a matter of federal patent law, a determination of unpatentability by the Patent Trial and Appeal Board in an inter partes review proceeding, affirmed by the Federal Circuit, has a collateral estoppel effect on patent validity in a patent infringement lawsuit in federal district court.”

Interactive Wearables is Not the 101 Case That You’ve Been Waiting For

On October 3, the U.S. Supreme Court once again requested the views of the Solicitor General (SG) in a Section 101 case, Interactive Wearables v. Polar Electric Oy. Last summer, there was excitement in the patent community when the SG, whose advice the Court usually follows, recommended granting review in American Axle v. Neapco. Although that petition was ultimately denied, this new case purports to fit the mold of American Axle. This has led some to hope that Interactive Wearables will also get the nod from the SG—and perhaps High Court review. To those eager for a Supreme Court decision that reins in patent eligibility jurisprudence, however, I regret to inform you that Interactive Wearables will not be that case. This case is quite unlike American Axle—and its claimed invention is in the heartland of what should be ineligible subject matter.

Presenting the Evidence for Patent Eligibility Reform: Part III – Case Studies and Litigation Data Highlight Additional Evidence of Harm

Systemic-level studies and data regarding impact on investment and innovation, as detailed in Part II of this series, are not the only way to demonstrate the substantial harm that the current state of patent eligibility has inflicted on the U.S. innovation ecosystem. Other robust evidence shows that current Section 101 law has harmed innovation by removing the incentives to develop and commercialize particular inventions of public importance. As another form of harm, the vagueness and breadth of the Alice/Mayo framework have also enabled accused infringers to transmogrify Section 101 into a litigation weapon in inappropriate cases that has created unnecessary burdens and costs on innovators and the courts.

SCOTUS Justices Lob Tough Questions at Both Sides in Prince-Photo Fair Use Fight

The Supreme Court today heard oral arguments in The Andy Warhol Foundation v. Lynn Goldsmith, a case asking the nation’s highest court to determine whether Warhol’s unlicensed use of Goldsmith’s photographs of pop superstar Prince was a fair use of that copyright-protected photo. Many of the Supreme Court’s questions focused on the scope of the use at issue in the case, as well as the extent of the new meaning or message that a purportedly derivative work must take on before it is considered transformative under factor one of the four-factor fair use test.