by Dennis Crouch
The Supreme Court is now open for business for its 2018-2019 Calendar. The only pending patent case before the court is Helsinn v. Teva, which focuses on the meaning of “on sale ” in the Section 102 of the Patent Act as revised by the 2011 America Invents Act. When do pre-filing sales count as prior art — what level of public disclosure is necessary?
CVSG: On October 1, the Supreme Court asked for the views of the U.S. Government in the case of RPX v. ChanBond — Whether a party that asks for review of a patent has standing to appeal the U.S. Patent and Trademark Office’s final ruling on that review to the U.S. Court of Appeals for the Federal Circuit.
Early in the term, the court regularly denies a host of petitions that had accumulated over the summer as part of its “long conference.” The court has now done that with about 16 patent case denials out of the gate, including a few cases that I found interesting, including:
- Smartflash LLC v. Samsung Electronics America, Inc. et al., No. 18-189 (PTAB judges as principal officers; retroactive CBM reviews)
- 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 Seagatemeet the “intentional or knowing” requirement set forth in Halo v. Pulse).
- 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?”).
- 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.).
RPX (CVSG mentioned above) is the only case from the initial September conference that was not denied on the first round.
The next upcoming conference is October 5, 2018 and the court is scheduled to consider two cert petitions in patent cases:
- Advanced Audio Devices, LLC v. HTC Corporation, et al., No. 18-183 (Whether an IPR against patents filed before enactment of the AIA violates the Takings Clause of the 5th Amendment to the U.S. Constitution.?)
- Alexsam, Inc. v. Wildcard Systems, Inc., et al., No. 17-1483 (when does a breach of patent license case get to Federal Court?)
Both of these cases would interesting to see before the court.