Supreme Court Holds Over Two Patent Cases, Considers Two More on Patent Eligibility

by Dennis Crouch

On May 1, the U.S. Supreme Court revealed its decisions from the April 28 conference. Among the three patent cases considered, the court denied certiorari for the pro se case of Wakefield v. Blackboard, while holding over the other two for reconsideration at a later conference. This development increases the likelihood of these two cases being heard by the court, although a grant of certiorari has not yet been announced.

The held-over cases include:

1. Teva Pharmaceuticals USA, Inc. v. GlaxoSmithKline LLC, No. 22-37: This case examines whether FDA-required labeling in a “skinny-label” situation can be considered patent infringement. A skinny-label occurs when a generic drug company seeks approval for a drug with a label that omits the patented indications of the brand-name drug. The case has received support from amici and the Solicitor General through a CVSG (call for the views of the Solicitor General).

2. Fall Line Patents, LLC v. Unified Patents, LLC, No. 22-925: The focus of this case is whether Commissioner for Patents Drew Hirshfeld, who was neither the Director nor Acting Director of the USPTO at the time, properly exercised the authority of the USPTO. The presented question is, “Whether the Commissioner for Patents’ exercise of the Director’s authority pursuant to an internal agency delegation violated the Federal Vacancies Reform Act.”  The question in Fall Line is the same as presented in Arthrex II. The SG filed a joint responsive brief in these cases and so we can expect them to rise and fall together.

As the Supreme Court has held over these cases for further consideration, some justices appear interested in hearing arguments on these matters. However, the final outcome remains uncertain until a grant of certiorari is announced.

On May 11, 2023, the Supreme Court will hold another conference to decide whether to grant certiorari in two patent eligibility cases. Both cases have received support from amici and the Solicitor General.

1. Tropp v. Travel Sentry, Inc., No. 22-22: This case revolves around the patent eligibility of David Tropp’s TSA master-lock method. Although the Solicitor General supports certiorari, it has expressed the view that Tropp’s method is patent ineligible.

2. Interactive Wearables, LLC v. Polar Electro Oy, No. 21-1281: This case addresses the patent eligibility of Interactive Wearable’s claims, which the Solicitor General believes to be a patent-eligible technological improvement, distinguishing it from Tropp.

In addition, the Supreme Court has yet to rule on the Amgen v. Sanofi case, argued in March 2023. The court’s decision will carry significant implications for the biotech and pharma industries and, depending on its statements regarding functional claims, may have broader ramifications across various technology sectors.

20 thoughts on “Supreme Court Holds Over Two Patent Cases, Considers Two More on Patent Eligibility

    1. 6.1

      Sounds like they were personal invitations loloololol.

      For real though, he doesn’t actually address whether they were, in fact, personal invitations.

      Also the “muh civil fine” line is almost too hilarious. What? They’re going to fine them 200$? Lololol. All this hooblah over 200$ fines? Lololol. Saving the republic with a fine! lolololol. What clown show!

      In any event, it’s good to remember that it isn’t just some specific justices in on this response to enforcement action, it’s all of them.

      link to

      And to be very fair, they may well be correct to take the stance they are. They’re not a part of the other three branches and are only arguably supposed to be all that much regulated by the others. This helps prevent political contamination of the courts, which BTW, as has been pointed out on other channels is SUPPOSED to be the by far the weakest branch of all of them, and is only SUPPOSED to be addressing specific cases/controversies between two parties. NOT setting what the law actually is for the whole of the country for decades or entire lives. Which is of course why most people care all that much about a branch that is supposed to only be resolving issues between the two parties, not effectively making law, or muh remaking society, or muh this or that. And further supposed to be having very little effect on the running of the country. Though I know that line can be tough to walk and they’ve taken on ever increasing mission creep since their inception.

    1. 5.1

      Also doesn’t show the small square door on the right side of the building where bribes can be dropped off.

      1. 5.1.1

        Says the guy who thought the Court could do no wrong when they employed the same mechanisms as they always employ in patent cases…


    1. 4.1

      Undoubtedly correct, but it would be nice if SCOTUS combined 2-3 101 cases so that we could argue actual holdings vs. mere dicta.

      Particularly as the so-called “judicial exceptions” are, naturally enough, judge-made i.e., the statutory text and legislative history are irrelevant.

      1. 4.1.1


        Fully a part of the problem is exemplified with your seemingly easy acceptance of legislating from the Bench.

        Patent law is a special animal — with an explicit Constitutional designation of authority, and that was NOT to the judicial branch.


          Sure, just like fetus worship, subjugation of women and establishing Christianity as the state religion is so “explicitly” laid out in the Constitution.


            Your emotive and apoplectic rant is noted.

            As is the fact that it has nothing to do with my comment or the content of this thread.


            “Sure, just like fetus worship, subjugation of women and establishing Christianity as the state religion is so “explicitly” laid out in the Constitution.”

            That’s only in the dominion you silly billy.

            Wen haz?

    2. 4.2

      Why hide Dube’s wage twit?

      The focus on the bottom (finally) making some sizable percentage gains obscures the actual drops for everyone else.

      Interestingly enough, listing to a current The Realignment, the guest is attempting to assert the very opposite.

      link to

      1. 4.2.1

        Oh, and don’t forget to normalize that seemingly advance with a lowering adjustment for inflation.

        Real wages then — across ALL strata would then be seen as being worse off.

        (B-b-but “policy,” right Malcolm? )

  1. 3

    Both of these cases would be good ones for the Court to take. I never wish for cert. in a patent case (too much room for the SCOTUS to make things worse), but these both touch on issues of major societal concern. Fall Line also presents a reasonably clean fact pattern on which to decide the issue, although the facts are a bit messier in Teva v GSK.

  2. 2

    Please do not assign these cases to Justice Thomas as I cannot think of a single decision he has ever rendered on a patent case that wasn’t an unmitigated disaster for patent prosecutors.

      1. 2.1.1

        And yet more hidden MISinformation from Greg…

        As we hurtle toward the entirely House-GOP-created debt ceiling crises…

        LOL – sorry but no. Sprinting Hard Left to GET TO the debt ceiling is decidedly NOT “entirely House-GOP-created

        No wonder Greg resorts to hiding these signals.

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