Supreme Court Long Conference – Patent Law

by Dennis Crouch

The Supreme Court is back in session and is holding its first conference – the Long Conference – on October 1, 2019.  The court is scheduled to consider whether to grant certiorari in a number of important patent cases:

  • Obviousness: Acorda Therapeutics, Inc. v. Roxane Laboratories, Inc., No. 18-1280 (When should the objective indicia of nonobviousness be discounted based upon alleged “blocking” by an existing prior patent).  This case is supported by five additional friend-of-the-court briefs
  • Obviousness: Senju Pharmaceutical Co., Ltd. v. Akorn, Inc., No. 18-1418 (Whether no-opinion judgments comply with 35 U.S.C. § 144; Whether objective evidence of non-obviousness must be considered before cancelling claims as obvious).
  • Prosecution Procedures: Hyatt v. Iancu, No. 18-1285 (Whether MPEP 1207.04 – allowing for reopening prosecution – violates patent applicants’ statutory right of appeal following a second rejection).
  • Eligibility: Glasswall Solutions Limited v. Clearswift Ltd., No. 18-1448 (role of factual assertions when patent eligibility is challenged in a R.12(b)(6) motion to dismiss for failure to state a claim) (Link to Berkheimer).
  • Eligibility: StrikeForce Technologies, Inc. v. SecureAuth Corporation, No. 19-103 (Facts in step two of Alice) (Link to Berkheimer).
  • Damages: Zimmer, Inc. v. Stryker Corporation, No. 18-1549 (is negligence enough for enhanced damages).
  • Litigation Procedure: Xitronix Corp. v. KLA-Tencor Corp., dba KLA-Tencor, Inc., No. 19-58; and No. 18-1170 (Does appellate jurisdiction over Walker Process claims lie in the regional circuits, or in the Federal Circuit?).
  • Litigation Procedure: Imperium IP Holdings (Cayman), Ltd. v. Samsung Electronics Co., Ltd., No. 19-101 (Overturning jury verdict and the Seventh Amendment).
  • Covered Business Method Review: IBG LLC v. Trading Technologies International, Inc., No. 19-120 (what is a “technological invention” under the CBM review program).

 

5 thoughts on “Supreme Court Long Conference – Patent Law

  1. 3

    If any of these certs are to be granted, I would bet on Xitronix Corp. v. KLA-Tencor Corp., dba KLA-Tencor, Inc. A nice neat issue that could end shuttle-transfers between the regional Circuit courts and the Fed. Cir. for disputed jurisdiction over Walker Process antitrust suits for alleged fraudulent patent obtaining [suits not including patent infringement]. [Maybe adding a motion for sanctions for appeal of baseless AT allegation?]

  2. 2

    If any of these certs are to be granted, I would bet on Xitronix Corp. v. KLA-Tencor Corp., dba KLA-Tencor, Inc., a nice neat issue that could end shuttle-cock case transfers between the regional Circuit courts and the Fed. Cir. for disputed jurisdiction over Walker Process antitrust suits for alleged fraudulent patent obtaining [suits not including patent infringement]. [Maybe adding a motion for sanctions for appeal of baseless AT allegation?]

  3. 1

    A civil war would be great for innovation!

    After we pack the courts and impeach Lyin’ Brett the Fratboy Idjit we will all look back and laugh at that silly moment when the Re pu k k k es and glibs tried to turn the clock back to the 1500s.

    1. 1.1

      The irony is stultifying as this particular “turn the clock back” rant comes from the person most wanting to turn the clock back on a certain form of innovation.

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