Posts Tagged: "petition for certiorari"

Chestnut Hill Sound, Inc. has filed a petition asking the U.S. Supreme Court to consider whether the Federal Circuit’s disparate practice with respect to issuing Rule 36 decisions for losing patent owner-appellants versus losing petitioner-appellants is constitutional. The petition includes statistics demonstrating that patent owner-appellants are three times more likely to receive a Rule 36 judgment than petitioner-appellants. Chestnut Hill’s petition cites statistics on the number of Rule 36 decisions being issued, which come from Larry Sandell’s article, What Statistical Analysis Reveals About Winning IPR Appeals, LAW 360 (August 8, 2019, 5: 22 PM). A footnote in the petition explains that the likelihood of patent owner-appellants receiving a Rule 36 affirmance is actually closer to 3.6 than 3. “Since a losing Patent Owner- Appellant has a 66% chance of receiving a Rule 36 opinion, and a losing Petitioner- Appellant has an 18% chance of receiving a Rule 36 opinion, a Patent Owner- Appellant is 3.6 times as likely to receive a one- word affirmation than a Petitioner- Appellant,” says the petition.

On November 1, Meredith Addy of AddyHart P.C. and I submitted an Amici Curiae brief to the U.S. Supreme Court on behalf of Freenome Holdings and New Cures for Cancers in support of the Petition for Certiorari in Athena Diagnostics v. Mayo Collaborative Services. If the Supreme Court does not take this case, it is unlikely to reconsider its decisions on Section 101 of the U.S. patent law. This may be our last gasp judicial effort. The Supreme Court takes cases raising inconsistencies in the law or a circuit split. We knew parties/amici would focus on the Federal Circuit’s “internal circuit split,” so we took a different approach and urged the Court to resolve five critical inconsistencies in the law, summarized below.

As expected, Athena Diagnostics last night filed its petition for certiorari to the U.S. Supreme Court, asking it to fix the United States’ patent eligibility law problem. Adam Gahtan and Eric Majchrzak of Fenwick & West and Seth Waxman, Thomas Saunders, Joshua Koppel and Claire Chung of WilmerHale filed the petition for Athena. The specific question Athena is presenting is: “Whether a new and specific method of diagnosing a medical condition is patent-eligible subject matter, where the method detects a molecule never previously linked to the condition using novel man-made molecules and a series of specific chemical steps never previously performed.” Athena urged the Court to take the case considering the Federal Circuit’s eight separate opinions in which the court divided 7-5 on denying en banc review—evidence of “much-needed guidance on the proper application of the judicially-created exceptions to Section 101 of the Patent Act.”

The Supreme Court has requested that Apple and Cisco file responses to Straight Path IP Group, LLC’s (SPIP’s) petition for certiorari in Straight Path IP Group, LLC v. Apple Inc., et al. The petition presents the following question: “Whether Rule 36(e) of the Federal Circuit’s Rules of Procedure violates the Fifth Amendment by authorizing panels of the Federal Circuit to affirm, with no explanation whatever, a District Court judgment resolving only issues of law.” SPIP filed its petition on August 23 and Apple and Cisco filed waivers of their right to respond on September 4 and 5, respectively. But on September 18, the Court requested that both companies file their responses by October 18.

SPIP Litigation Group, LLC v. Apple, Inc. and Cisco Systems, Inc., No. 19-253., concerns four patents that have been the subject of decisions by the Patent Trial and Appeal Board (PTAB) and the Federal Circuit. More than 25 lawyers have participated in the litigation. The briefs and evidence in the trial court covered more than 2,500 pages. My client, on appeal from an adverse summary judgment, did not contend that the factual record failed to support that result. My client raised only two legal issues when it appealed to the Federal Circuit from the district court’s decision that the patents were not infringed. The appeal briefs covered 202 pages. Three Federal Circuit judges heard oral argument and issued their decision 12 days later. It read: “AFFIRMED. See Fed. Cir. R. 36.” Did the judges understand the technology any better than I do? No one can tell. Did my client deserve some explanation, even if exceedingly concise, from the judges? The petition I have now filed with the Supreme Court claims that the Federal Circuit judges deprived my client of a constitutional right by declaring, “You lose, but we won’t tell you why.”