Patent Law and the Supreme Court: Certiorari Petitions Denied (July 2014)

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.

2014

Galderma Laboratories, L.P. v. Tolmar, Inc., No. 13-1350

Question Presented:

35 U.S.C. § 103 and controlling precedent mandate that obviousness be assessed "at the time the invention was made" and that the scope and content of the prior art as a whole be evaluated in determining obviousness. 35 U.S.C. § 282 and controlling precedent further mandate that the patent challenger must prove obviousness by clear and convincing evidence, a burden that remains always on the challenger. Accordingly, the question presented is:

Whether the Federal Circuit, without considering the state of the prior art as of the patent's filing date, may presume that a lawfully issued patent is presumptively obvious under 35 U.S.C. § 103 and then place the burden of proof on the patentee to prove otherwise?

Cert. petition filed 5/7/14, waiver filed by respondent Tolmar, Inc. 5/12/14, conference 6/5/14. Petition denied 6/9/14.

CAFC Opinion, CAFC Argument

Watkins v. Kajima Intern., Inc., No. 13-1200

Question Presented:

6th Circuit: Will this court solve the confusion of pleadings in a patent case? Is there more that has to be in the pleadings of a patent case or do the lower courts have to abide by the decision in: Bell Atlantic Corp. v. Twombly, --- U.S. ----, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)) ("Bell Atlantic") 4; see also Fed. R. Civ. P. Form 16 (2006) (setting forth a sample complaint for patent infringement that includes only the following elements: 1) an allegation of jurisdiction; 2) a statement that the plaintiff owns the patent; 3) a statement that defendant has been infringing the patent "by making, selling, and using [the device] embodying the patent"; 4) a statement that the plaintiff has given the defendant notice of its infringement; and 5) a demand for an injunction and damages); Conley, 355 U.S. at 47, 78 S.Ct. 99 (stating that "[the] illustrative forms appended to the Rules plainly demonstrate [the pleading requirements]"). It logically follows that a patentee need only plead facts sufficient to place the alleged infringer on notice as to what he must defend. See Bell Atlantic, 127 S.Ct. at 1971 n. 10 (stating "[a] defendant wishing to prepare an answer in the simple fact pattern laid out in Form 9 [in the Federal Rules of Civil Procedure] would know what to answer; a defendant seeking to respond to plaintiffs' conclusory allegations would have little idea where to begin."). Thus, a plaintiff in a patent infringement suit is not required to specifically include each element of the claims of the asserted patent.

Maty v. Grasselli Chemical Co., 303 U.S. 197 (1938)

"Pleadings are intended to serve as a means of arriving at fair and just settlements of controversies between litigants. They should not raise barriers which prevent the achievement of that end. Proper pleading is important, but its importance consists in its effectiveness as a means to accomplish the end of a just judgment."

Many [m]otions to dismiss or to strike could be avoided if the parties confer in good faith (as they are required to do under L. R. 7-3), especially for perceived defects in a complaint, answer or counterclaim which could be corrected by amendment. See: Chang v. Chen, 80 F. 3d 1293, 1296 (9th Cir. 1996) (where a motion to dismiss is granted, a district court should provide leave to amend).

Moreover, where a party has amended his Complaint once or a responsive pleading has been served, the Federal Rules provide that leave to amend should be "freely given when justice so requires." F[ed]. R. Civ. P. 15(a). The Federal Circuits require that this policy favoring amendment be applied with "extreme liberality." Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990) [(e]mphasis added[).] Especially where there is a pro se litigant involved, the court must...