Supreme Court 2018 — Pending Cases for September Conference

by Dennis Crouch

The Supreme Court now starting its Fall 2018 term with its first Conference set for September 24, 2018.  At that initial Conference, the Court is set to consider certiorari in for a rich set of pending patent cases.  The following is a rundown of some of the more interesting:

  • Smartflash LLC v. Samsung Electronics America, Inc. et al., No. 18-189 (Three good questions):
  1. Whether Administrative Patent Judges of the [PTAB] are principal Officers of the United States who must be appointed by the President with the advice and consent of the Senate under the Appointments Clause.
  2. Whether retroactive application of CBM Review to patents on inventions disclosed before passage of the [AIA] violates the Due Process Clause of the Fifth Amendment.
  3. Whether undisputed evidence that a patented invention is not unduly preemptive, presented to technically proficient judges of the Board, is relevant to the question whether the invention is patent-eligible under 35 U.S.C. § 101.
  • B/E Aerospace, Inc. v. C&D Zodiac, Inc., No. 17-1252 (are the objective indicia of non-obviousness analyzed only after a prima facie case of obviousness is established).
  • Nichia Corporation, et al. v. Everlight Electronics Co., Ltd., et al., No. 17-1707 (Although obviousness is a question of law, should deference be given to a jury’s verdict on the ultimate legal question?).
  • Regeneron Pharmaceuticals, Inc. v. Merus N.V., No. 17-1616 (litigation misconduct and inequitable conduct).
  • Bombardier Recreational Products Inc., et al. v. Arctic Cat Inc., No. 17-1645 (does the “should have known” standard for willful infringement under Seagate meet the “intentional or knowing” requirement set forth in Halo v. Pulse).
  • RPX Corporation v. ChanBond LLC, No. 17-1686 (appellate standing for IPR petitioner).
  • Integrated Technological Systems, Inc. v. First Internet Bank of Indiana, No. 17-1590 (“Does 35 U.S.C. § 282 allow for challenges to a patent’s validity based on patent eligibility under 35 U.S.C. § 101?”).
  • Allergan Sales, LLC v. Sandoz, Inc., et al., No. 18-21 (whether the court may “ignore a factual stipulation” resulting in a non-infringement finding).
  • Jang v. Boston Scientific Corporation, et al., No. 17-1332 (does “ensnarement” apply as a defense to patent infringement).
  • Queen’s University at Kingston, Petitioner v. Samsung Electronics Co., Ltd., et al., No. 18-190 (does the presumption that prior art is enabled improperly invert the statutory burden).
  • Leon Stambler v. Mastercard International Inc., No. 17-1140 (Whether the Federal Circuit’s issuance of Rule 36 judgments without opinions for the disposition of appeals from the Patent and Trademark Office violates 35 U.S.C. § 144’s requirement that the Federal Circuit “shall issue” its “mandate and opinion” for such appeals.).
  • Promega Corporation v. Life Technologies Corporation, et al., No. 17-1669 (timing of a new trial motion — does the 28-day rule of R.50(d) apply).
  • Paul Andrew Leitner-Wise v. LWRC International, LLC, et al., No. 18-52 (does an inventor have any residual patent rights after assigning the patent).
  • Droplets, Inc. v. Iancu, No. 17-1384 (Chenery doctrine: can an appellate court substitute its own views of the law in siding with an agency decision?).
  • American Technical Ceramics Corp. v. Presidio Components, Inc., No. 17-1497 (Indefiniteness: Can a court rely only on the ex post facto application of the scientific method to hold that the “clear notice” requirement of § 112 ¶ 2 has been satisfied?).
  • New World International, Inc., et al. v. Ford Global Technologies, LLC, et al., No. 18-264 (when is a suit dismissed on personal jurisdiction grounds barred from refiling?).

17 thoughts on “Supreme Court 2018 — Pending Cases for September Conference

    1. 4.1

      As a matter of great sorrow, there are almost no human brains from the 19th century alive today. My home was built in 1906, and sadly all those who built it are long dead.

      Since Justice Ginsberg was born in 1933, describing her brain as from the 19th century exhibits a noteworthy combination of ignorance and stupidity. Furthermore, if you look into her biographical details you will appreciate what a remarkable and meritorious life she has led, and her efforts both within the law and within her own family.

      Shame about the calcified 19th century brains. Teddy Roosevelt did not achieve much, Abraham Lincoln was neither eloquent not politically astute and over in the UK Lloyd George was a bit of an idiot too. If we deleted the discoveries of that clown Faraday things would stop going round in circles as they do. Our health would be far better if we disregarded the alleged discoveries of that nincompoop Pasteur and metallurgy would have been far better without that dunce Bessemer who should have devoted his energies to converting humans to Methodism rather than iron to steel. Your contempt for nineteenth century brains is obviously based on detailed historical knowledge and well-founded.

      1. 4.1.1

        It’s a phrase that does not mean what you (apparently) think it means, as NONE of those people that you mention, if alive today, would be “stuck” in trying to prevent the unfolding of innovation or the “locking in” of old ways, to which meaning the phrase is intended.

        Here, if I were to hazard a guess as to why Ginsburg IS being labeled (and it is only a guess), is that Ginsburg has shown tendencies to “lock down” ANY ability to consider some issues from more than a single predetermined position. It is to THOSE views (and viewpoints) that the label of “calcified” applies.

        Your umbrage goes too far.

      2. 4.1.2

        Gee, Mr. Cole is Mr. Literal today.

        Pretty lame defense of Ginsburg, Paul. Saying that she has done some good stuff in the past does not speak of her current mentally incompetent state. Nor does it speak to her abhorrent record in IP law that illustrates her knowledge of science and technology is about at a five year old’s level.

        And she seems to be one of those that believe in ethereal information and a mind where the processing occurs in a spirit world right from —-wait for it—the 19th century.

        And she has shown that she is incapable of learning new things—wait for it–a calcified brain.

      3. 4.1.3

        The fact is Paul that when someone becomes as incompetent as Ginsburg that it is to the detriment of us all that they remain. She should resign effectively immediately.

        I am not going to spend the time to pull out some of her quotes, but it is a disgrace that a person of such little education or flexibility would be a justice on the SCOTUS. She was never fit to serve.

      4. 4.1.4

        Your problem Paul Cole is that you are a light purple when dark purple is the best color. Plus you have legs because you haven’t learned to hover. And you have a st upid smile on your face and too many fingers.

        You need to work on yourself.


          I am not aware of any tools that will change my appearance.

          But I am contented with my logo – like the sentient puddle of Douglas Adams.

  1. 3

    American Technical Ceramics Corp. v. Presidio Components, Inc., No. 17-1497 (Indefiniteness: Can a court rely only on the ex post facto application of the scientific method to hold that the “clear notice” requirement of § 112 ¶ 2 has been satisfied?).

    This case seems to have escaped attention here. It’s an interesting question for the life sciences although I suspect the correct answer is “sometimes” (which makes cert less likely).

    1. 3.1

      Why the suspicion of “sometimes?”

      What is the variable that you see that would create the condition of “sometimes” as an acceptable answer?

      This seems like a purely binary question, either “yes,” or “no.” Are you adding considerations not present in the actual question? What considerations?

      1. 3.1.1

        What is the variable that you see that would create the condition of “sometimes” as an acceptable answer?

        “The” variable? More like a zillion of them, often referred to as “the particular facts of the case.”

        Also note that “sometimes” includes “very very rarely” and the application of the scientific method encompasses activities that every one of us (even religious fundamentalists) carries out on a daily basis with little effort.

        Lastly, generally speaking, new judge-made bans forbidding certain types of logical reasoning (e.g., “claim dissection”) that may be employed in the course of a legal analysis are usually not necessary and usually not helpful. I’ll grant that the use of the scientific method requires more than mere logic (unless we include “thought experiments”) but finding indefiniteness merely because a trivial test may be required to determine, e.g., whether a recited limitation is present or absent in an infringing device seems … extreme.

        But perhaps not. Happy to be convinced otherwise!


          Regardless of your attempt to switch this to someone else (and try to convince you), and trying to not take your reply as the typical glib nothingness that you so often “provide,” I wanted to see if there is any “there” in your answer…

          You seem to want to say that the particular facts of a case (like a zillion of them) is what would make the legal difference.

          I suppose that there is some “there,” there – but that is not what my question was directed to. My question was directed to the legal aspect, of which, THAT is — and remains — binary.

          It is not “the legal question as may be applied to a variety of facts” that is being asked about.

          It is “the legal question” in and of itself.

          That question: “Can a court rely only on the ex post facto application of the scientific method to hold that the “clear notice” requirement of § 112 ¶ 2 has been satisfied?

          Either a court CAN rely only on the item, or the a court CANNOT rely only on the item.

          It is an entirely different question that arises (one that I am not asking about) in what appears to be you taking it that a court CAN rely only on the item — and then obtaining different results of that process given that each situation may have its own diverse and myriad set of facts to which THAT ex post facto application of the scientific method be applied.

          The rest of your post seems only to go deeper into the weeds.

          Maybe you did not understand the question being asked of the court.


            “Can a court rely only on the ex post facto application of the scientific method to hold that the “clear notice” requirement of § 112 ¶ 2 has been satisfied?”

            I wonder if that’s what happened in the particular case at issue. Do you know?


              Don’t know.
              Don’t care.

              It’s not as of I haven’t informed you previously, I am more interested in the larger sense of the law as opposed to most any particular application to any one of a zillion sets of facts. I would rather grasp the ocean than attempt a deep dive into a puddle.

  2. 2

    In SmartFlash, was the invention disclosed prior to the AIA in a parent application, or was the application that resulted in the patent-at-issue actually filed before the passage of the AIA. If just the former, that seems like a weaker argument than the latter.

  3. 1

    link to

    Off topic, but this is cool. (Of course nothing more than the abstract concept of adding propulsion to an implement of travel which the Pharaohs did when they added a horse to the chariot.)

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