by Dennis Crouch
For the first time since 2008, the Supreme Court’s October 2021 term will come to a close without any patent decisions. I have included a chart below, but should note that there is some debate around the edges about what constitutes a “patent decision.” Here is my list: SCTPatentCases.
In addition, the Court has also not granted writ of certiorari in any pending cases. Thus, it is entirely possible that the October 2022 term will come and go without any patent decisions. The only IP centric case that has been granted certiorari is Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, reviewing a Second Circuit copyright decision on the issue of transformative fair use.
Still, there are a number of important pending petitions that could also be transformative in the patent law construct, including four cases with outstanding calls for the views of the Solicitor General (CVSG). I have divided the pending cases into three general categories:
- Eligibility under Section 101: American Axle & Manufacturing, Inc. v. Neapco Holdings LLC, et al., No. 20-891 (CVSG requested May 3, 2021); Also, Universal Secure Registry LLC v. Apple Inc., et al., No. 21-1056; Interactive Wearables, LLC v. Polar Electro Oy, et al., No. 21-1281.; and Ameranth, Inc. v. Olo, Inc., No. 21-1228.
- Scope and Procedure for the Enablement Requirement: Amgen Inc., et al. v. Sanofi, et al., No. 21-757 (CVSG requested April 18, 2022);
Infringement and Damages:
- Do Enhanced Damages Require “Egregious Behavior”: Cisco Systems, Inc. v. SRI International, Inc., No. 21-1267.
- Prior art in Inter Partes Review: Baxter Corporation Englewood v. Becton, Dickinson and Company, No. 21-819 (use of expert testimony to fill gaps in the prior art).
- Using Claim Construction to Undermine Jury Decisions: Olaf Sööt Design, LLC v. Daktronics, Inc., et al., No. 21-438 (CVSG requested October 4, 2021).
- Appellate Standing for IPR Challenger & Licensee: Apple Inc. v. Qualcomm Incorporated, No. 21-746 (CVSG requested February 22, 2022); also Apple Inc. v. Qualcomm Incorporated, No. 21-1327.
- Res Judicata and the Patent-Specific Kessler Doctrine: PersonalWeb Technologies, LLC v. Patreon, Inc., et al., No. 20-1394 (CVSG submitted, agreeding that Federal Circuit erred, but suggesting that this is not an appropriate case).
Most of these petitions will be decided by the end of June 2022, although the cases awaiting Gov’t amicus brief will likely be delayed until the Fall 2022.