Patent Law and the Supreme Court: Patent Certiorari Petitions Denied in 2017

WilmerHale compiles lists of certiorari petitions that raise patent-law issues. This page contains a consolidated list of all recently denied petitions, organized in reverse chronological order by date of certiorari petition.

Recently pending, granted and denied certiorari petitions

Johnson & Johnson Vision Care, Inc. v. Rembrandt Vision Technologies, L.P., No. 16-489 Questions Presented:

Fed. R. Civ. P. 60(b)(3) authorizes a losing party to seek to reopen a final judgment based on a showing of "fraud . . . , misrepresentation, or misconduct by an opposing party" that has denied the movant a full and fair opportunity to present its case. The circuits are sharply split on the burden of proof required for such relief, the showing that is necessary to meet the burden, the identity of the party that must bear the burden under particular circumstances, the meaning of "an opposing party," and what constitutes "misconduct". The questions presented are:

Whether a movant must show that it has been denied a full and fair opportunity to present its case by "clear and convincing evidence," as the Third, Fifth, Seventh, Eighth, and Eleventh Circuits have held; or must the movant instead show "substantial interference" in the presentation of its case, as the Ninth, Tenth, and D.C. Circuits have held; or does the burden on this issue shift under certain circumstances to the party opposing a Rule 60(b)(3) motion, as the First and Sixth Circuits have held; or is there no requirement to show any real effect on the proceeding at all, as the Federal Circuit has held here. Whether "misrepresentations . . . of an opposing party" under Fed. R. Civ. P. 60(b)(3) include misrepresentations by an expert witness, unknown to the party or its counsel, as the Federal and Eleventh Circuits have held, or cannot be attributed to the party without the complicity of the party or its counsel, as the Seventh and D.C. Circuits have held. Whether "misconduct" under Fed. R. Civ. P. 60(b)(3) includes purely accidental and unintentional omissions in the course of discovery, as the First, Fifth, Eleventh and Federal Circuits have held, or requires a showing of improper or wrongful behavior, as the Sixth Circuit has held. Cert. petition filed 10/7/16, conference 1/13/17. Petition denied 1/17/17.

CAFC Opinion, CAFC Argument

Sightsound Technologies, LLC v. Apple Inc., No. 16-483 Question Presented:

In Cuozzo Speed Technologies, LLC v. Lee, 136 S. Ct. 2131 (2016), the Court held that the Leahy-Smith America Invents Act of 2011, Pub. L. No. 11229, 125 Stat. 284, in most instances precludes judicial review of the Patent Trial and Appeal Board's ("Board") decision to institute review of challenged patent claims. The Court emphasized, however, that "we do not categorically preclude review of a final decision where a petition fails to give 'sufficient notice' such that there is a due process problem with the entire proceeding, nor does our interpretation enable the agency to act outside its statutory limits . . . ." Cuozzo, 136 S. Ct. at 2141. The Court reasoned that any such errors would, like other final agency actions, remain subject to review under the Administrative Procedure Act. Id. at 2142.

Notwithstanding this Court's admonition in Cuozzo, the Federal Circuit has imposed a...