by Dennis Crouch
The Supreme Court has requested a response to a pending petition for certiorari in United Therapeutics Corp. v. Liquidia Technologies, Inc., indicating that at least one justice sees potential merit in the case. The petition challenges the Federal Circuit’s application of the statutory limits on the Patent Trial and Appeal Board’s (PTAB) authority in inter partes review (IPR) proceedings. I believe that there is a potential that the Court will issue a grant-vacate-remand (GVR) order, asking the Federal Circuit to reconsider its deferential decision based upon Loper Bright.
UTC owns the patent at issue, U.S. Patent No. 10,716,793, which is directed to methods of treating pulmonary hypertension using treprostinil. In the petition for certiorari, UTC argues that the Federal Circuit erred by deferring to the PTAB’s discretion instead of conducting a de novo review of the PTAB’s compliance with 35 U.S.C. § 312. This provision requires IPR petitions to identify “with particularity” the grounds and evidence supporting the challenge to each patent claim.
UTC contends that the PTAB violated § 312 by relying on grounds and printed publications not raised in Liquidia’s initial IPR petition. The Federal Circuit affirmed the PTAB’s decision, holding that it would defer to the PTAB’s discretion as long as the new arguments were “not inconsistent with” the initial petition.
However, UTC argues that this deferential standard contradicts the Supreme Court’s decision in SAS Institute, Inc. v. Iancu, which held that the petitioner’s contentions, not the Director’s discretion, define the scope of the IPR proceeding “all the way from institution through to conclusion.” 138 S. Ct. 1348 (2018).
Moreover, UTC contends that the Federal Circuit’s inconsistent application of the standard of review has created an intra-circuit split. Some panels apply de novo review, recognizing the statutory limits on the PTAB’s authority, while others defer to the PTAB’s discretion. Compare, the Federal Circuit’s decision in this case against, cases such as In re NuVasive, Inc., 841 F.3d 966, 970 (Fed. Cir. 2016), which applied de novo review to determine whether a ground relied upon by the PTAB was “new.” See also, Ericsson Inc. v. Intell. Ventures I LLC, 901 F.3d 1374 (Fed. Cir. 2018) (“[T]he Board has discretion to determine whether a petition for inter partes review identified the specific evidence relied on in a reply and when a reply contention crosses the line from the responsive to the new.”).
In a cert petition filed before Loper Bright, UTC also raises the question of whether Chevron deference should be overruled — the question is now moot because the Supreme Court has already overruled Chevron and held that courts must exercise independent judgment in determining whether an agency has acted within its statutory authority. However, it is unclear exactly how the lack of Chevron deference would impact the outcome here because it was not directly applied by the Federal Circuit.
UTC has a powerhouse team, including Douglas Carsten (MWE) and William Jay (Goodwin). Supreme Court has given Liquidia until August 12 to respond and the case is set to be discussed by the court at the “long conference” when the court next reconvenes September 30, 2024.
The “winners” are the big corporations and the 1 percenters because they are the ones who will immediately start challenging whatever Federal agency rules and regulations they don’t like. It’s not like they aren’t aware that they have a pack of corrupt allies on the Court. Even better for the big businesses in those Circuits (like the 5th) that are already packed with know-nothing glibertarian s t o o g e s.
MM was just trying to say that the ruling is BASED.
Anyhow MM, how do you feel about Joey dragging down the house and senate substantially?
The more immediate point: is he still going to vote for a vegetable?
As opposed to the convicted criminal also found liable for having raped E. Jean Carroll?
I have never voted for Trump and will not do so, so no, you offer a false dichotomy.
“E. Jean Carroll”
A lot of people assaulted her, in her mind. Just because NY juries give out awards like hotcakes based on decades old “testimony” based on memorrrriiiiiieeeeesssss, doesn’t mean all that much.
The answer to that is yes. Also, a leftoid apparently tried to take Trump out just now, but Trump just took cover and then fist pumped like truchad.
Funniest part is, I’m not even joking.
link to news.sky.com
Link to said event. If it wasn’t joever before it surely is now. Leftists think they got france and will magically take the US, unlikely.
link to yahoo.com
Trump grazed, two dead, including shooter reported to be Mark Violets, reportedly Antifa member. Biden reported to have said it was time to put trump “in a bullseye”. Apparently someone tried to tell the secret service about the shooter but they did nothing right before shooting. Many details uncertain, as its said trump may have been hit by glass busted by the bullets not the bullets. Also prime minister Shinzo Abe said to have redirected the bullet from beyond the grave to save his ameribro. Biden makes statement repudiating such violence (also rumored to have initially been confused that it was his VP that was shot at not Trumplol).
link to x.com
What is the best meme that you have seen so far?
Mine: you-know-who: “what do you mean, he missed?”
shooter reported to be Mark Violets, reportedly Antifa member.
Shooter turned out to be registered-Republican who supported conservative causes.
“The majority of the class were on the liberal side, but Tom, no matter what, always stood his ground on the conservative side,” Smith said. “That’s still the picture I have of him. Just standing alone on one side while the rest of the class was on the other. … It makes me wonder why he would carry out an assassination attempt on the conservative candidate.”
And you do realize that Antifa stands for “Anti-Fascism”? The group’s original claim to fame was for staging counter-protests against neo-Nazee groups and white supremacists.
Corrected:
“
Shooter turned out to be registered-Republican who supported Democrat causes.”
I have seen the explanation for registered Republican being so that he could vote against Trump in primaries.
I have seen the explanation for registered Republican being so that he could vote against Trump in primaries.
That’s a convenient “explanation.” Unfortunately, there are zero facts to support such an explanation. Kind of like the “explanation” that antifa and BLM set up false flag operations to storm the capital on 1/6 . The interesting part of that explanation is that I’ve also read/heard that the people who stormed the Capitol did nothing wrong and/or are being held as political prisoners.
The language I quoted was from an interview with one of the shooter’s classmates who described the shooter as a conservative who espoused conservative views. I suppose the classmate could be part of some grand conspiracy to hide the shooter’s real motives. However, I’m not a big believer in grand conspiracies.
Occam’s razor says that the simplest explanations tend to be the correct ones. To me, the simplest explanation for the shooter registering as a Republican is that he self-identified as one.
And while the former President also self-identifies as a Republican, he hardly acts like one. Undoubtedly, he panders to them, but most establishment Republicans abhor him — they are just too afraid to cross him and his supporters. Its not hard find to Republicans who state “Never Trump.” The former President’s selection for VP was actually one of them. However, he soon figured out that to succeed in today’s Republican party, one needs to kiss the ring.
One interesting factoid is the number of the former President’s former cabinet members who do not support him in his election bid — including the VP, Attorney General, Chief of Staff, White House counsel, defense secretary — among others. In essence, the people who know him best (politically) don’t want him to return to office. It appears that TDS is more catchy the closer one gets to him. I wonder why that is? What they’ve said about the former President is quite unflattering. And assuming that they’ve accurately described the former President, their reluctance to support him again is quite understandable.
I understand some may describe the alternative to the former President as little better than a potted plant. However, I (and many others) would certainly vote for a potted plant over the former President.
“there are zero facts to support such an explanation. ”
You mean other than his other statements and actions including donating to Democrat causes?
¯\_(ツ)_/¯
I have noticed that the braying about ‘existential threat to democracy’ was turned down to about zero after Biden’s debate debacle – and for good reason, as it was abundantly clear that voting for Biden was NOT voting to save democracy as he is clearly only a puppet.
Who actually is running the Executive Branch?
In the patent realm, whether or not one does or does not like the overturning of Chevron depends largely if not entirely on what one wants or doesn’t want from the Patent Office (and / or what one’s client(s) want or don’t want).
Its removal cuts both ways. Will be “interesting” to see how this new can o’ worms plays out over the coming years . . .
Winners an’ losers here, there, and everywhere.