by Dennis Crouch
While the country is still mourning the loss of Justice Ruth Bader Ginsburg and arguing over her replacement, the Supreme Court itself is set to begin its October 2020 term this week. One of the first orders-of-business will be the Long Conference set for September 29, 2020. At that first conference of the term, the court is set to consider the pile of certiorari briefing completed over the summer.
There are a few key patent cases in the pile:
- Constitutional challenge to Admin Patent Judges:
- United States v. Arthrex, Inc., No. 19-1434;
- Smith & Nephew, Inc. v. Arthrex, Inc., No. 19-1452;
- Sanofi-Aventis Deutschland GmbH v. Mylan Pharmaceuticals Inc., No. 19-1451;
- Arthrex, Inc. v. Smith & Nephew, Inc., No. 19-1458;
- Polaris Innovations Limited v. Kingston Technology Company, Inc., No. 19-1459.
- I believe that it is highly likely that the court will grant certiorari in Arthrex.
- Retroactive application of IPR to already applied-for patents:
- Arthrex, Inc. v. Smith & Nephew, Inc., No. 19-1204.
- Divided Infringement and 271(g):
- Willowood, LLC v. Syngenta Crop Protection, LLC, No. 19-1147.
- Federal vs State Law for Patent Licensing:
- Cheetah Omni LLC v. AT&T Services, Inc., No. 20-68.
- Right to a Jury Trial on Specific Performance of FRAND license:
- TCL Communication Technology Holdings Limited v. Telefonaktiebolaget LM Ericsson, No. 19-1269.
- Patent Eligibility
- As a whole: The Chamberlain Group, Inc. v. Techtronic Industries Co., No. 19-1299.
- Software: Thomas v. Iancu, No. 19-1435.
- Significantly more: Primbas v. Iancu, No. 19-1464.
- Flash of Genius: Morsa v. Iancu, No. 20-32.
- Due Process Issues Regarding Sua Sponte Judicial Order:
- Ameranth, Inc., Petitioner v. Domino’s Pizza, LLC, No. 19-1351.
- Appealing IPR Termination:
- BioDelivery Sciences International, Inc. v. Aquestive Therapeutics, Inc., fka MonoSol RX, LLC, No. 19-1381.
- Power of PTO To Exclude Patent Attorney:
- Polidi v. Lee, No. 19-1430;
- Piccone v. United States Patent and Trademark Office, No. 19-8844.
- Obviousness – Nexus for Secondary Indicia:
- SRAM, LLC v. FOX Factory, Inc., No. 20-158.
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The court has not granted certiorari to any patent cases this term. However, Google LLC v. Oracle America, Inc., No. 18-956 is set for oral arguments on October 7, 2020. The case focuses on copyright protection in functional aspects of software and thus may well impact patent law. In December, the court will hear Facebook v. Duguid. Facebook is arguing that the statutory prohibition on certain debt-collection telephone calls is a violation of its free speech rights. A third case that I am watching is Van Buren v. US, which is set for oral arguments at the end of November. In that case, the question asks “Whether a person who is authorized to access information on a computer for certain purposes violates Section 1030(a)(2) of the Computer Fraud and Abuse Act if he accesses the same information for an improper purpose.” Here, Van Buren was a police officer who was running searches on the internal databases for a “friend.”