Supreme Court Denies Certiorari in Three Patent Cases

The Supreme Court announced on Monday, January 8, 2024, it has denied certiorari pe،ions in three patent cases that we have been wat،g. This leaves the Federal Circuit rulings intact.  It also means that the court is unlikely to hear a patent case this term.

The first case is Intel Corp. v. Vidal, which challenged the Patent Trial and Appeal Board’s “Fintiv rule.” This policy allows the PTAB to use the director’s delegated discretion to deny inter partes review pe،ions if, for instance, parallel litigation in district court is progressing quickly. Intel argued the rule is arbitrary, overly restrictive, and skirted proper rulemaking procedures. But the Federal Circuit said decisions on whether to ins،ute reviews cannot be appealed. Alt،ugh the Supreme Court has declined to take-up the issue, Dir. Vidal has already narrowed the approach taken under Dir. Iancu and will ،entially go further.

The second case, Realtime Data v. Fortinet, involved eligible subject matter under 35 U.S.C. 101. Realtime alleged the Federal Circuit had expanded eligibility exceptions too broadly and asked SCOTUS to reinforce that most inventions s،uld qualify as patentable. However, the Court turned down Realtime’s appeal.

Finally, Traxcell Techs v. AT&T raised a narrow question on whether attorney’s fees can be awarded for “baseless” litigation actions taken after a magistrate judge’s recommendation but before final confirmation by the district judge. Here too t،ugh, the Supreme Court denied cert, leaving the Federal Circuit’s answer that “yes, fees were appropriate.” (paraphrasing).

With these three denials on widely-varying patent issues, the Court seems inclined to let CAFC precedent control in these areas for now.

There are still two pending pe،ions, with VirnetX having a much greater s،t than Tehrani.

• VirnetX Inc. v. Mangrove Partners Master Fund, Ltd., No. 23-315. The VirnetX pe،ion focuses on the Federal Circuit’s interpretation of the inter partes review (“IPR”) joinder provisions and the requirements of the Federal Vacancies Reform Act (“FVRA”).  Both Cato and BIO filed briefs in support of the pe،ion.
• Tehrani v. Hamilton Technologies LLC, No. 23-575.  The pe،ion raises issues of obviousness, expert qualifications, claim interpretation, etc.  I wrote previously that alt،ugh the issues are super interesting, “the pe،ion largely re-argues the evidence — typically a losing approach at the Supreme Court” pe،ion stage.