Does the patent statute permit patent owners to appeal decisions by the U.S. Patent and Trademark Office’s Patent Trial and Appeal Board that petitions for inter partes review were not filed late? Or, under the statute, are these decisions simply unreviewable? The Supreme Court will tackle these questions on Monday, when it will hear argument in Thryv, Inc. v. Click-To-Call Technologies, LP.
Another case being argued in December that attracted an amicus brief is In re Google LLC. In this case, Google seeks a writ of mandamus ordering the district court to dismiss the case for improper venue. According to Google, the case presents the question of whether “a defendant who keeps computer equipment in the facility of a third party in a judicial district has a ‘regular and established place of business’ in that district under the patent venue statute.” Besides Google, the other interested party in this case is the plaintiff-patent owner, Super Interconnect Technologies LLC.
Two cases being argued next week attracted amicus briefs. One is Monk v. Wilkie, a case in which Conley F. Monk, Jr. and eight other veterans sought class certification to assert claims of unreasonable system-wide delay by the Board of Veterans Appeals in deciding appeals of denials of veterans’ claims. In 2018, the Court of Veterans Appeals denied class certification in an equally divided 4-4 en banc decision. According to Monk, however, the CAVC misinterpreted Federal Rule of Civil Procedure 23(a) when it did so.
An important case being argued next week is Network-1 Technologies, Inc. v. Hewlett-Packard Company. This case involves an appeal and a cross appeal. While the appeal presents run-of-the-mill claim construction disputes, the cross-appeal presents the question of whether the district court erred in concluding that HP was estopped from presenting an obviousness challenge because HP could have but did not raise that challenge during a prior inter partes review. This is an important question, because its resolution requires interpretation of 35 U.S.C. § 315(e)(2), which bars any assertion “that the claim is invalid on any ground that the petitioner raised or reasonably could have raised during that inter partes review.”
When a patent applicant challenges the U.S. Patent and Trademark’s rejection of her patent application, and in particular takes that challenge into federal district court rather than straight to the Federal Circuit—in order, for example, to introduce new evidence and obtain de novo review—must the applicant pay the USPTO’s personnel expenses of the district court proceeding? Indeed, must the applicant pay those expenses, including attorneys’ fees, regardless of whether the applicant wins or loses in court? Those are questions the Supreme Court will consider Monday, when it holds oral argument in Peter v. NantKwest, Inc., the first of six Federal Circuit cases the Supreme Court has agreed to hear during the 2019 Term.
Next week the Federal Circuit will hear arguments in VirnetX Inc. v. Apple Inc. For the third time in a series of cases brought by VirnetX, Apple is appealing a judgment of infringement. As explained in VirnetX’s brief, “[i]n this action . . . a jury found infringement by revised versions of VPN on Demand and FaceTime,” “finding . . . that VirnetX was entitled to $502 million in damages.”
A constitutional question will be argued next week in a patent case entitled Evolved Wireless LLC v. ZTE (USA) Inc. This case presents, however, a total of three issues: (1) “Whether the Board erred in concluding the patent claims at issue are unpatentable, by failing to properly apply its own adopted claim construction”; (2) “Whether the Board erred by refusing to consider the declaration of Evolved’s expert on the sole ground that it did not include a statement referring to penalty of perjury”; and (3) “Whether the proceedings violated Evolved’s Fifth Amendment Constitutional rights.”
Another interesting case being argued next week is Cardionet, LLC v. InfoBionic, Inc. This case presents the question of whether an improved cardiac monitoring device is ineligible for patenting under 35 U.S.C. § 101, and also whether early dismissal of the case based on the finding of ineligibility was appropriate under Federal Rule of Civil Procedure 12(b)(6).
Another case being argued next week involves X2Y Attenuators, LLC and Intel Corporation. This case presents the question of whether district court abused its discretion by dismissing two stayed cases for failure to prosecute.
One case we are following that is being argued next week is In re FCA US LLC. This case presents the question of whether the Trademark Trial and Appeal Board erred in holding a mark was likely to cause confusion given that in a separate proceeding a district court determined confusion was unlikely.