Wegner’s Top Ten Pending Patent Cases

Hal Wegner has updated his top-ten list of pending cases:

  1. Impression Products v. Lexmark (cert petition pending) (post-sale and international exhaustion)
  2. Sequenom v. Ariosa Diagnostics (cert petition pending) (patent eligibility)
  3. Samsung v. Apple (cert granted) (design patent damages)
  4. Cuozzo Speed v. Lee (awaiting Supreme Court decision) (claim construction at the PTAB)
  5. Halo Electronics v. Pulse and Stryker v. Zimmer (awaiting Supreme Court decision) (requirements to prove willful infringement)
  6. SCA Hygiene v. First Quality Baby Prods (cert granted) (when does laches apply in patent cases)
  7. Life v. Promega (cert petition pending) (active inducement for export of component)
  8. Cooper v. Lee (cert petition pending) (direct challenge to PTAB administrative review)
  9. MCM Portfolio v. Hewlett-Packard (cert petition pending) (direct challenge to PTAB administrative review)
  10. Helsinn Healthcare v. Teva Pharm. (Federal Circuit case) (whether Metallizing Engineering was overruled by statute – i.e., what is the prior art impact of secret pre-filing commercialization by patentee).

Read Wegner’s Writings published by the Los Angeles Intellectual Property Law Association.  A full list of pending Supreme Court patent cases is available on Patently-O.


58 thoughts on “Wegner’s Top Ten Pending Patent Cases

    1. 7.1

      Ah – “pending” as is “pending somewhere in the SCOTUS pipeline,” I see. PlanetBlue will probably pop up on this list in six months, following a Federal Circuit opinion.

  1. 6

    Re: “10. Helsinn Healthcare v. Teva Pharm. (Fed.Cir.) (whether Metallizing Engineering was overruled by statute – i.e., what is the prior art impact of secret pre-filing commercialization by patentee).”
    Since Metallizing and its Fed. Cir. case adoptions are clear that the Metallizing Engineering doctrine is a purely personal equitable forfeiture, and NOT prior art, I do not understand why it keeps getting called prior art, and getting confused with the statutory “on sale” or “public use” bars. [Nor is it applied as such in Helsinn.]

    1. 6.1

      Paul, Pennock (controlling law) certainly based its holding on “abandonment,” as was recognized in Metallizing, but when it was put into the statute in 1836, public use and on sale became a statutory bar — legal, not equitable in nature.

      Now, when I first learned patent law, statutory bars were not considered to be prior art. Prior art was the stuff of 102(a) — stuff in the public domain before the invention was made. When one reads 103, it seems to refer to the stuff of 102(a) because it refers to the time of the invention just like 102(a).

      But, then things got messy. Because of the reference in 103 was back to 102 as a whole if one completely disregards 103’s reference to the time the invention was made, case after case treated things like prior invention like prior art for obviousness purpose. Ditto, 102(e). Ditto 102(f). (I hardly think Federico intended what eventually happened, but you never know.) Wouldn’t it then be just a matter of time that public use and on sale be considered prior art rather than statutory bars?

      It is very unfortunate that crafters of the AIA did not take care to define prior art as the stuff of the public domain, and bars to be the stuff of some personal action by the inventor. That would leave the special case of prior applications not published at the time of filing: Such applications are not prior art. Neither are they statutory bars. These prior applications are rather, the stuff of priority — where the first-to-file gets the patent.

      Once these categories are properly sorted, we could then rationally apply the requirement for “invention” where it should be — over the prior art, the stuff that is in the public domain. That would have harmonized us with the ROW.

      By not keeping things sorted properly, the crafters simply added to the confusion, or at least that is the way things turned out whether intended or not. Without sorting, true harmonization is not possible.

      What we really need is a do-over with the AIA. It is a very confused mess. And this time, it might be wise to allow all of us, and the Europeans since the goal is harmonization, to comment on the draft statute before it is submitted to congress so errors like this are fixed.

      1. 6.1.1

        Ned, I am not sure what you are getting at here, but it does not seem inconsistent with what I said above. Nor can it be, since 102 or 103 prior art is applicable to everyone, and the Fed. Cir. has specifically held that the Metallizing Engineering doctrine is NOT prior art – it only applies to the party that has commercial used a trade secret process to make commercial products for longer than the grace period before filing ITS OWN patent application on that process.

        [If the manufacturing process is determinable from the sold product their is no need for the Metallizing Engineering doctrine.]


          Paul, I am not disagreeing, but the Feds also continue to speak of on-sale as form of prior art. It is not — it is a statutory bar. That is the point I am trying to make, among others.


            Ned, are you arguing an actual difference between prior art and statutory bars OTHER than during the pre-AIA grace period? Are you saying that if company A engages in a public on-sale activity that it could not use that as prior art against a later-filed application of company B? Or is this just a historic origin argument? Please explain.


              Some bars are just bars against the inventor. Some bars are of the stuff of prior art: publication, public use. Just because something is a statutory bar does not make it ipso facto prior art.

              But the CCPA/Federal Circuit never kept statutory bars, prior art and prior invention separate and distinct.


                Ned, please identify what statutory bars are still statutory bars only against the inventor and not prior art?

                1. Ned must have been asleep during the entire AIA process, wherein it was openly discussed the that the aim of Congress was to eliminate “personal forfeitures,” consolidate and simplify the concepts of prior art – quite opposite of what he states with his lament of “It is very unfortunate that crafters of the AIA did not take care to define prior art as the stuff of the public domain, and bars to be the stuff of some personal action by the inventor

                  Maybe he was too engrossed in his windmill chase against business methods to have noticed, or maybe he just decided “not to read” the discussions as to what the aim of Congress was in the AIA, but whatever the case may be, he sounds rather like a naive simpleton (also, the aim was NOT to achieve an exact harmonization with the AIA, but merely to take steps closer to alignment).

                2. Against the inventor: public use (by the inventor) or on sale. These are bars, not prior art.

                  Prior invention of another: 102(e), (f), (g) is not prior art as well. These are rules of priority, the first to invent the invention gets the patent.

                  Aligning US law along these traditional lines, before the changes made by the CCPA and CAFC, would go a long way into bringing US law into harmony with the ROW.

                  Prior art, see 102(a).

                3. Ned, I beg to differ. Even 102(g) proofs are usable as prior art defense against later patents of others in a D.C., NOT just in interferences – there is a whole book on that subject.

                4. Ned does not read books or anything else that goes against his “versions.”

                  That’s just his own special version of “professionalism.”

                  Most other people have a different name for that.

      2. 6.1.2


        Pennock is not controlling law in relation to what happened in the AIA (the soliloquy).

        Congress has spoken: what is new to you is still new in the patent sense.

        Even if long a trade secret. The previous math on unlimited times was wrong because it was trying to use math belonging to two different legal realms.

        What we really need is a do-over with the AIA” Well, do your job right and we may get that (you do have an opportunity to shoot a torpedo at the good ship USS AIA Titanic with its bulkhead-less CHOICE of “non-separability.”

        I would also point out (naming names) that “HARMonization” is one of those things that Big Corp want, and that any sense of harmonizing for the sake of harmonizing is “la Z” at best and at least suspect.

  2. 5


    is this the Federico commentary you referred to in the 101 Dichotomy thread?

    link to ipmall.info

    You mentioned that there’s a section where Federico “says that Congress purposefully allowed terms sounding in function while discussing what is now 112(b)”. I couldn’t find that section. Could you point me to the chapter its in?

    1. 5.1

      Bob, anon confuses Federico and Rich. Rich wrote 112(f) based on a draft from the Milwaukee patent law association. The point was to overturn the holding of Halliburton. In Application of Fuetterer, 319 F.2d 259 (C.C.P.A. 1963), at note 11, Rich said this:

      We do not mean to imply that 35 U.S.C. § 112 was not in derogation of the result reached in any case decided prior to the enactment of the 1952 Patent Act. See, e. g., Halliburton Oil Well Cementing Co. v. Walker et al., 329 U.S. 1, 67 S.Ct. 6, 91 L.Ed. 3. We feel, however, that a considerable body of case law, if not the preponderance thereof, before the Halliburton case interpreted broad statements of structure, e. g., “means,” plus a statement of function in the manner now sanctioned by the statute. See, e. g., Westinghouse v. Boyden Power Brake Co., 170 U.S. 537, 558, 18 S.Ct. 707, 42 L.Ed. 1136.

      From Westinghouse:

      “Patents for a machine will not be sustained if the claim is for a result, the established rule being that the invention, if any, within the meaning of the Patent Act, consists in the means or apparatus by which the result is obtained, and not merely in the mode of operation independent of the mechanical devices employed; nor will a patent be held valid for a principle or for an idea, or any other mere abstraction.”

      But if the second claim be not susceptible of the interpretation that it is simply for a function, then the performance of that function must be limited to the particular means described in the specification for the admission of air from the train-pipe to the brake-cylinder. This we understand to be the theory of the defendants, and this raises the same question which is raised under the first and fourth claims, whether defendants’ device contains the auxiliary valve of the Westinghouse patent, or its mechanical equivalent.

      In this view, it becomes unnecessary to express an opinion whether the second claim be valid or not, since in the aspect of the case most favorable to the complainants, it is necessary to read into it something which is not found there, or, in the 558*558 language of complainants’ brief, “to refer back to the specification; not, it is true, for a slavish adoption of the identical instrumentalities therein described, but for the understanding of the essential and substantial features of the means therein illustrated.” In thus reading the specification into the claim, we can adopt no other construction than to consider it as if the auxiliary valve were inserted in the claim in so many words, and then to inquire whether the defendants make use of such valve, or its mechanical equivalent.

      Id., 170 US at 537-538.

      1. 5.1.1

        Ned, – that is highly disingenuous and more than a bit deceptive, given as the conversation was WITH YOU concerning Federico (not Rich) and concerning the use of terms sounding in function OUTSIDE OF 112(f).

      2. 5.1.2

        I appreciate the effort expended in the citation Ned, but the prior comments were about non-112(f) functional claiming. I am particularly interested in the subject as Crouch has at least one post which indicates that non-112(f) functional claiming is statutory, and that post also does not explain why this claim technique is authorized.


          Are you looking for explicit words authorizing? Should I ask you to look for explicit words not authorizing? You do know that 112(f) is for words sounding in action withOUT structure, and outside of 112(f) words sounding in action with SOME structure is perfectly fine, right?

          The words of Federico (from memory here, so I may be paraphrasing): Congress has acted to reverse the Court’s view, although [Federico, personally] was not sure to what extent. Federico’s concern notwithstanding, the clear import is there.

          I also previously supplied a court case or two that talked about claims having words sounding in action, and these were not discussing 112(f) at all – for example see Orthokinetics, Inc v. Safety Travel Chairs, Inc. 806 F.2d 1565 (1986).


            >>”outside of 112(f) words sounding in action with SOME structure is perfectly fine, right?”

            The basis for precisely that is what I’m curious about.

            Reading Orthokinetics, it seems to be taken for granted that functional claiming with some structure is permissible where definite.

            That appears to result in an absurdity where the claim is broadened by the addition of token structure. “means for commputing” is much narrower than “a processor for computing”. That is absurd.

            But it makes sense that the absurdity wouldn’t inform validity of functional claiming outside of 112(f) if such functional claiming was permitted before 112(f).

            Would you have any references for why computer implemented methods are practically always definite upon the recitation of a result?

            >>”The words of Federico (from memory here, so I may be paraphrasing): Congress has acted to reverse the Court’s view, although [Federico, personally] was not sure to what extent. Federico’s concern notwithstanding, the clear import is there.”

            That is indeed in the commentary, but it is definitely in reference to means-plus-function:

            “The last paragraph of section 112 relating to so-called functional claims is new. It provides that an element of a claim for a combination (and a combination may be not only a combination of mechanical elements, but also a combination of substances in a composition claim, or steps in a process claim) may be expressed as a means or step for performing a specified function, without the recital of structure, material or acts in support thereof. It is unquestionable that some measure of greater liberality in the use of functional expressions in combination claims is authorized than had been permitted by some court decisions and that decisions such as that in Halliburton Oil Well Cementing Co. v. Walker, 67 S.Ct. 6, 329 U.S. 1, 91 L. Ed. 3 (1946), are modified or rendered obsolete, but the exact limits of the enlargement remain to be determined.”


              It is not an absurdity – and very much reflects the limits of language in ALL Art units.

              Your last paragraph here does start off with 112(f). And the point there is that Halliburton IS abrogated.

              But what this abrogation – of which Federico WAS certain – means as to the extent of use of terms of function wherever – and whenever the “single means” concern is not present – was something that Federico was not certain of. This is a comment as to effect of the change of law – not a comment as to whether or not the law was changed.

              The concern (especially the concern with the Software Arts) as to whether something new or not is present is correctly captured under a different patent doctrine: the doctrine of inherency.

              All too often these different concerns are befuddled and conflated. “Bob,” this is evident in your questions here, and your focus on “absurdity” where in truth there is none.

              The simple question for you to answer: did the first computer that could use software have – inherently** – ALL future improvements to the machine that come by way of software already in there?

              If you want the answer to this question to be “yes,” then you must deal with a rather large host of unpleasant consequences (and the fact that such an answer is what the patent case of Morse does NOT allow).

              **and please use the proper legal view of this word

              And I will add here as well that ALL of this is – or should be – well known to you. These are NOT new points just now put on the table for discussion. These are points LONG on the table, and long run away from, from the likes of Ned, Malcolm and I daresay even yourself.


                >>”It is not an absurdity – and very much reflects the limits of language in ALL Art units.”

                Why do you think it makes sense that including a nominal token of generic structure should broaden a claim beyond the scope of an equivalent claim under 112(f)?

                1. That “nominal token of generic structure” is just a big Wah from you.

                  You still seem to want to take issue BUT not use the appropriate doctrine of inherency.

                  I will take that as a concession on your part.

                  But hey, maybe you want to actually deal with that doctrine of inherency….

                2. Just a big Wah? Is that like how your issues with Alice is a big Wah? Does that really constitute reasonable discussion to you?

                  You have refused to answer why you think it makes sense that including a nominal token of generic structure should broaden a claim beyond the scope of an equivalent claim under 112(f).

                  Your tangent regarding inherency is unjustified. We were discussing functional 112(f)/non-112(f) claiming and my question is on point. We can follow your tangent when you explain why it is relevant.

                3. The reasonable discussion would have been you addressing the inherency doctrine as I set the table for you. It certainly is NOT a tangency.

                  THAT is the answer – and WAS presented. It is you that seems to have the problem coming up with an answer.

                  (For some unknown reason you are thinking that 112(f) must be the broadest claim form. It is entirely unclear why you would think that. 112(f) is an entirely optional claim form – it has it’s pros and cons, but nowhere anywhere is there the assumption that you want to see.

                4. I do not see how inherency is relevant. I made that clear in my post. If you can’t be bothered to explain yourself, you’re just as much part of the noise as Malcolm is.

                5. What you can or cannot see is not a problem of mine. I have explained myself quite enough – it is up to you to drink from the well from which I have brought you.

                  You might attempt to follow what I posted before you exclaim that you cannot understand (you explained nothing except an excuse that you do not see). Apply yourself to the questions – answer the questions – C’mon “Bob” this really is not that difficult (unless you are simply unwilling to understand where this must lead).

                6. You failed to communicate your point. I’ll grant you that it may not be entirely your fault, but none the less you failed. If you want to continue to make noise rather than clarify, I’ll leave you to it.

                7. “Bob,”

                  Quite the contrary – I did NOT fail to communicate my point – my point is still there, waiting for you to grasp it.

                  I can lead you to the waters of knowledge – I cannot make you drink.

                  The clarity must come from you being willing to let go of your animus towards software patents. It is that animus that clouds your understanding and prevents you from accepting what simply must logically be accepted.


          Bob, Rich, in Fuetterer, read the statute broadly:

          “We feel, however, that a considerable body of case law, if not the preponderance thereof, before the Halliburton case interpreted broad statements of structure, e. g., “means,” plus a statement of function in the manner now sanctioned by the statute.”

          One can see that Rich did not view the statute’s apparent requirement to use the term “means” or “means for” to be decisive. In his view, 112(f) should operate to restore the law to its former state: broad statements of structure, plus a statement of function are “now sanctioned.”


            Thanks Ned.

            The opinion was interesting. As bold as the footnote you quoted was, the opinion itself seemed somewhat more restrained in considering how functional claiming interacted with 112(b) based on the specifics of the invention. I don’t understand why presently it seems to be taken for granted that functional claiming is definite.


              Definite: In re Donaldson.

              Anon assumes that functional claiming is both OK and does not invoke 112(f). In this he is mistaken.


                Where exactly is my error, Ned?

                You do not show this because you cannot show this.

                All you do is rail on about how you would wish the law to be, whining about how the law is, and then you say the error is mine without more.

                There is “functional claiming” that invokes 112(f) and there is claims with some structure and with some words sounding in action that do not invoke 112(f).

                I provide In re Orthokinetics for a reason: it is not a “Oh Noes, software” case.

                The case shows the underlying law is not “special” for software – the underlying law IS the law and applies to all Art fields.

                As to Bob’s laments on “b-b-but software seems different”:
                There is no doubt that some Art fields are different than other Art fields when it comes to ease of expression with terms sounding in action.

                There is nothing illegal or illicit or wrong with this.

                “Bob,” you seem to want to take it for granted that all software has some special case foe being itself taken for granted as to this use of terms sounding in function.

                That’s just not so.

                As others have noted with the likes of terms such as “handle,” or “screwdriver,” the language that we use simply is not a perfect thing and thus those things that are easier to describe with words of action are thus described.

                As I have also poked Malcolm in the eye with his penchant for “objective physical structure,” ALL software claims could be written in such terms, taking a transition-of-Beauregard-to “objective-physical-structure” approach of detailing, in objective physical terms every rise and and every valley, or every notch, or any other objective physical difference.

                The result therein would meet what Malcolm clamors for (and what you appear to want as well), and would be EXACTLY equivalent to the current manner of claiming (and let me remind you that claims are written for PHOSITA – Persons Having Ordinary Skill In The Art).

                The result though of this “objective physical structure” would be claims in the tens and hundreds of pages long, that would not be “recognizable” by the examiners, or the public, let alone PHOSITA.

                ALL of this has been explained time and again. Since “Bob” has been around long enough to know this (recalling “Bob’s” consistent upvoting of anything “Malcolm” in the DISQUS days, this nigh-constant wanting of arguments re-presented is nothing more than the old Br’er Rabbit trick. Maybe this time, there will be some small slip-up….

                And yet, when push comes to shove, and the explanations are provided again, or the counter points are presented again, we see the unmitigated CR@P from Ned about “just not reading.”

                Ned is NOT interested in a dialogue concerning the law, He is ONLY interested in his drive-by monologue and internet style shout down of blasting his view ad infinitum and ad nauseum. THAT is why he remains silent to the counter points raised.


                Even assuming he is right, it seems like there should be further discussion on the definiteness of functional non-112(f) claims on a context by context, claim by claim basis.

                It seems entirely plausible to me that defining a tire tread material by a result should be definite when defining an electronic device by at least some results should be indefinite.

                Instead it seems that everyone treats “processors configured to (result)” as practically per se definite.

                1. …”practically per se”…?

                  No, that would be improper.

                  One MUST still treat the claim as would be understood by a PHOSITA.

                  What’s that? The Supreme Court’s very own super-empowering of PHOSITA has an effect that you do not like?

                  Well, let’s see you join the club (and more than just for the immediate convenience, eh?)

                2. Right. In the good old days before KSR, “processors configured to (result)” was treated so differently! We both know that’s not true. Apply your hobby horse elsewhere.

                  You still haven’t defended the distinction between “means for (function)” and “ordered set of protons, neutrons, and electrons for (function)”.

                3. It is not a “hobby horse” – but you do see the impact of KSR, eh?

                  And now you appear to be confused by the Big Box of protons, neutrons and electrons – which is a slap in the face of those employing poor logic against what must be with the addition of the manufacture known as software to [Old Box].

                  You are going backwards, son.

                4. If a ‘processor’ is structure sufficient to avoid invoking 112(f), why aren’t isn’t an ordered set of elementary particles sufficient?

                5. An ordered set of elementary particles IS sufficient.

                  Let’s not forget to read claims as would a PHOSITA.

    2. 5.2

      Bob – answered on the other thread (Not the version that I have – I will check my records to see if it the same content.)

      1. 5.2.1

        Alright. I appreciate it. I sincerely would like to see the basis for non-112f functional claiming.

  3. 4

    Looks like HP is slow boating MCM to see what happens with Cuozzo and Cooper.

    If Cooper was a non-starter, the Court would have dinged it by now.

    Something is going on.

  4. 3

    Prof. Crouch,

    Malcolm’s bleating as is presented below has no place on blog that advertises itself as “America’s leading patent law source.”

    There is ZERO value in putting up with this type of attempted class w@rfare, field of rye self-anointed guardianship over the content of what a patent may be granted to, as a patent is a negative right and not a positive one, and any “value” lost to society is either a just cost from those who -by their choice – engage in the actions protected by the patent, or if no such activity occurs, then the cost solely to the patent holder – by their choice – of obtaining a patent.**

    How about you wake the F up and do something about this mindless, anti-patent blight? Has not a freaking full decade been long enough?

    **do you teach about the JuicyWhip case in your patent law courses?

    1. 3.1

      There is ZERO value in putting up with this type of attempted class w@rfare

      Not sure what “type” is being referred to. But it’s abundantly clear that 24-7 “tiny computer genius versus evil big company copyist” type class warfare is totally c00l! Because otherwise we won’t get emails, tweets or “social network” updates informing us about the hottest new “apps” for our lifestyle. With emojis! Nobody could have imagined it.

      How about you wake the F up

      Nothing like the smell of fresh coffee, brewed with love.

  5. 2

    link to nytimes.com

    The unprecedented safety shutdown of Washington’s subway for a day in March laid bare the deteriorating conditions that created a crisis.

    But the Metro, which opened four decades ago and shaped the Washington region, is not the only transit system in the Northeastern United States showing its age.

    The subways in New York City and Boston, both more than half a century older than the system in Washington, need billions of dollars to replace aging infrastructure and to meet rising demand. All three cities, home to most of the nation’s busiest subways, are growing and attracting young people, who prefer mass transit but have become frustrated by delays.

    As transit officials in Boston, New York and Washington focus on improving the subways, their efforts are being closely watched by planners and business groups who fear economic growth in the region could slow if the systems cannot keep up.

    “These are mega-systems with mega-sized challenges, and there is not going to be a silver bullet,” said Adie Tomer, a fellow at the Metropolitan Policy Program at the Brookings Institution.

    But thank goodness we have mountable computer displays that can tell us where to find the cheapest dog food! And it’s all because of our awesome patent system. Promote the progress!

    1. 2.1

      Actually, bizzarro paid blogger MM, it is a good example of the patent system. The patent system provides incentives. It is clear that the problem with the Metro is one of mismanagement. They have obviously neglected maintenance which they could have been doing the last 30 years.

      So, mismanagement is the problem–no incentive for the managers to do it right. No accountability like you have with your paid blogger supervisors.

      1. 2.1.1

        Right. We need more patents on methods of incentivizing city managers to “do stuff right”.

    2. 2.2

      All these mega-infrastructure problems will totally disappear when everyone has a robot car comprising a 3-D printer and an infrared display with on-demand smellovision.

      1. 2.2.1

        Why are you the one making a strawman that the infrastructure problems are linked with the patent system?


          a strawman that the infrastructure problems are linked with the patent system?

          The linkage goes like this: there’s ridiculous amounts of money out there. Ideally it would be put to good use in a manner that benefits everybody, like infrastructure improvements.

          Instead vast amounts are chucked at nonsense like “automatically determining how much cottage cheese you need to eat for lunch.”


            Your linkage is a fallacy.

            What people (inventors) CHOOSE to do with their own money is just NOT up to some self-righteous PR1CK who has appointed themselves overseer and guardian at the edge of rye fields of what patents should be for.

            Maybe in your ‘world’ we should do as Jane pleaded for us to do: all of us get down on our knees and pray.

  6. 1

    Constitutionality of Post Grant PTAB Challenges: The real sleepers in terms of potential impact are the Constitutional challenges to Inter Partes Review, Cooper v. Lee, Supreme Court No. 15-955, andMCM Portfolio LLC v. Hewlett-Packard Co., Supreme Court No. 15-1330. A decision whether to grant review is expected in June 2016; the chance of success is bolstered by strong brief writing particularly in one of the cases.

    link to laipla.net

    1. 1.1

      Ned, really great job writing the “strong brief” in Cooper v. Lee, Supreme Court No. 15-955.

      1. 1.1.1

        Night, you are going to have to give Robert P. Greenspoon and his firm credit for writing Cooper’s most excellent brief.

        I had a small part in writing our own brief in MCM Portfolio. We must give great credit to Tom Goldstein and his firm for a great job on our brief.

    2. 1.2

      The point here is that the importance of these two cases is self evident. Many petitions argue their petitions raise important questions of wide impact, like the just denied Dow Chem v. Nova (jury verdict of definiteness reversed after Nautilus came down). But there is no doubt that when congress effectively moves patent validity litigation to the PTO that the question of whether congress has the power to do that in the first place is of major importance. It is of importance not only to patent law, but generally on the issue of just how far the administrative state can go; and, just as importantly, it is important on the exactly what the 7th Amendment really means when it says that the right to a trial by jury shall be preserved in suits at common law.

      Also, today the Supreme Court granted HP’s motion to extend time:

      “May 25 2016 Order extending time to file response to petition to and including June 30, 2016, for all respondents.”


          anon, I think that is likely, but we will know a bit more after Cuozzo comes down.

          Wouldn’t it be interesting if they deferred Cuozzo to first consider Cooper and MCM?

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