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.
= = =
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.”
Three of the eligible subject matter cases (Thomas, Primbas, and Morsa) are identified in the judgment below as being nonprecedential. In two of those (Thomas and Primbas), the Federal Circuit simply affirmed without providing any written opinion. Other than the question being presented, it is therefore hard to independently determine whether those cases have any merit that would justify granting certiorari.
Would it be fair to say that another reason for an accelerated Justice replacement process has to do with the Court choosing its business for this next year, or that any placement should not be accelerated as the docket will have been already decided by the existing eight, and one more will not have a material impact?
I am betting that Moore will be overturned.
The ruling is just too strange to stand.
If we are lucky, the SCotUS will take a pass on patent cases this term. It rarely works to the good when they involve themselves with patent law. For better or worse, however, I expect that Prof C is correct in his prediction that they will take an interest in Arthrex.
Definitely agree.
I am having hard time finding one of their decisions that actually helped patent law on an issue that needed to be resolved. At the moment, I can’t think of one.
All their decisions create new broad multiple-part tests that eviscerate the statute. Their tests are so broad you could sail an oil tanker through them.
Makes me think Greg that maybe you should rethink Ginsburg. She was all about legislating on the bench. The Scotus becoming the ultimate legislators.
Almost all the big patent decisions that have weakened patents are about legislating on the bench. Creating these new multipart tests so that any decision can be reached by the fact finder. This is taking our laws and turning them into words with no meaning other than you have to go before a fact finder and they will do whatever they want.
That is what Ginsburg was all about. Many educated people think the right path is amendments to the Constitution when there are big holes or changes in society’s values and not having justices decide what our laws and values are.
I think if you think about this more and read more Constitutional law that you will find that Ginsburg is the enemy of freedom. Her way leads to a socialist society where government actors decide what happens in your life based on multi-factored tests where they can justify pretty much anything they do.
That was Ginsburg.
And Alice and the Rule of Reason are good examples of the types of decisions that Ginsburg loved. Eviscerate the statutes and put all the power in the fact finders hands and justify it with lots of words with no meaning. Ginsburg is about not having laws but powerful people deciding what they will.
If you agree with the Ends, of what matter are the Means?
(I know that YOU know, Night Writer – this is for those who may take issue with your conclusions here)
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