Welcome to Skilled in the Art. I’m Law.com IP reporter Scott Graham. Some big names from big law getting ready to battle it out at the Federal Circuit next week. I’m previewing three standout cases below, and taking another look at Judge Alan Lourie’s cri de coeur on the Supreme Court’s Section 101 jurisprudence. As always you can email me your thoughts and feedback and follow me on Twitter.
➤➤ Would you like to receive Skilled in the Art as an email? Sign up here.
Get Ready for Fireworks at Federal Circuit
On your mark. Get set. We have a big, big calendar coming up next week at the Federal Circuit. Let’s take a sneak peek at a few cases that are guaranteed to make headlines:
➤ Cisco Systems v. Arista Networks. Wednesday’s showdown over Cisco‘s copyright claims is one of the networking titan’s last best shots at wresting control of its sprawling IP battle with upstart Arista. The arguments will focus on Cisco’s quest for a new trial over its command line interface. They also might indicate the Federal Circuit’s view of Arista’s looming antitrust action against Cisco, which is predicated in part on the copyright case.
More broadly, the arguments could provide a look at how other Federal Circuit judges will assess Google’s bid for en banc review of its copyright battle with Oracle. Many of the arguments here—about industry standards, interoperability, and the reviewability of “black box” jury verdicts—echo those made by Google, who shares the same outside counsel as Arista.
➤ Saint Regis Mohawk Tribe v. Mylan Pharmaceuticals. This case has spawned derisive commentary, congressional bills, and the first ever amicus curiae briefs in an America Invents Act proceeding. On Monday it will be the the Federal Circuit’s turn to weigh in on Allergan‘s attempt to use Native American tribal immunity as a shield from PTAB review of its patents.
The Patent Trial and Appeal Board ruled in February that it will not recognize the Saint Regis Mohawk Tribe‘s sovereign immunity. It also held that Allergan remains the true owner of its Restasis patents, even if it paid the tribe $13.75 million to take nominal control.
Allergan and the tribe point out that the PTAB does recognize state sovereign immunity, and will argue there’s no good reason to treat tribes differently. They also note that the Supreme Court has consistently recognized tribal immunity in the absence of an explicit congressional waiver.
Mylan and the PTAB are getting support from the U.S. government, which says tribes can’t “withhold a public franchise from reconsideration by the superior sovereign that granted it.”
Massey & Gail’s Jonathan Massey will argue on behalf of Allergan and the Saint Regis Mohawk Tribe. Perkins Coie partner Eric Miller will defend the PTAB judgment, with amicus help from Mark Freeman of the DOJ’s civil division.
➤ Amarin v. ITC. The International Trade Commission is a hot forum, so a lot of eyes will be on this Friday argument, which addresses the ITC’s discretion to turn away cases. Amarin markets a prescription-only form of synthetically altered fish oil. The company tried to bring a Section 337 action to block imports from Dutch competitor Royal DSM, but the ITC declined to investigate after the Food and Drug Administration asserted jurisdiction.
Amarin argues that the ITC is statutorily compelled to investigate properly pleaded complaints. The ITC and DOJ say only the FDA, not private litigants, can enforce compliance with the Food, Drug and Cosmetics Act. Royal DSM says the Federal Circuit doesn’t even have jurisdiction to hear this appeal.
King & Spalding partner Ashley Parrish will argue for Amarin. Orrick, Herrington & Sutcliffe partner Mark Davies represents Royal DSM. ITC attorney Houda Morad will make the commission’s case. DOJ’s Joseph Busagets five minutes for the feds.
Seeking a Higher Power on Section 101
Can only God resolve the Supreme Court’s Section 101 jurisprudence?
Federal Circuit Judge Alan Lourie wrote Thursday that patent eligibility law “needs clarification by higher authority.” OK, Lourie was talking about Congress, not divine intervention, in his opinion concurring in the denial of en banc review of Berkheimer v. HP.
But Lourie didn’t seem to hold out much hope for the Supreme Court. Individual cases, “whether heard by this court or the Supreme Court,” aren’t well suited for settling the complex 101 debate, he wrote.
Lourie has been as dutiful as anyone on the Federal Circuit in applying the Supreme Court’s Section 101 cases—remember, he authored the plurality en banc opinion that the Supreme Court affirmed in Alice. So when he let loose with his critique of the Supreme Court’s approach on Thursday, it drew some “amens” in the choir.
I have more on the Federal Circuit’s decision to stick with Berkheimer here.
SAS Prompting Earlier District Court Stays
Speaking of the Supreme Court, its SAS Insititute decision is causing some district judges to stay patent cases earlier in the IPR process—even before the PTAB institutes proceedings. So reports Ropes & Gray partner Scott McKeown on the firm’s Patents Post Grant blog.
Lex Machina Dives Into Trade Secrets
Lex Machina has introduced legal analytics for trade secrets, my ALM colleague Sue Reisinger reports. “In tech, trade secrets are the coin of the realm,” Lex Machina’s Owen Byrd says.
That’s all from Skilled in the Art for this week. I’ll see you all again Tuesday.