Supreme Court Patent Law 2020: Long Conference Preview

by Dennis Crouch

While the nation continues to be mourning the lack of Justice Ruth Bader Ginsburg and arguing over her alternative, the Supreme Court itself is ready to start its October 2020 time period this week.  One of the primary orders-of-business would be the Long Conference set for September 29, 2020. At that first convention of the time period, the courtroom is ready to think about the pile of certiorari briefing accomplished over the summer season.

There are a couple of key patent circumstances within the pile:

• Constitutional problem 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 imagine that it’s extremely possible that the courtroom will grant certiorari in Arthrex. 
• Retroactive utility 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 complete: The Chamberlain Group, Inc. v. Techtronic Industries Co., No. 19-1299.
  • Software: Thomas v. Iancu, No. 19-1435.
  • Significantly extra: 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 courtroom has not granted certiorari to any patent circumstances this time period. However, Google LLC v. Oracle America, Inc., No. 18-956 is ready for oral arguments on October 7, 2020.  The case focuses on copyright safety in practical facets of software program and thus might well affect patent legislation.  In December, the courtroom will hear Facebook v. Duguid. Facebook is arguing that the statutory prohibition on sure debt-collection phone calls is a violation of its free speech rights. A 3rd case that i’m watching is Van Buren v. US, which is ready for oral arguments on the finish of November.  In that case, the query 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 working searches on the interior databases for a “friend.”