The Supreme Court on Tuesday added eight new cases to its argument docket for the new term starting next week, including a patent case that could discourage litigation by patent trolls.
In spite of the federal government shutdown, it was business as usual at the court. The justices met in closed conference on Monday to discuss which of the roughly 2,000 petitions that have come in during the summer recess merit their attention. Only eight made the cut, though it is possible that some of the summer cases were put off and could be acted on later. Just before release of the list, Chief Justice John Roberts Jr. made a brief visit to the court's press room, as he has in the past.
The court took no action on several closely-watched cases, including Moose v. MacDonald, a dispute over Virginia's anti-sodomy law, and a series of petitions challenging the government's regulation of greenhouse gases.
Three of the cases the court granted involve intellectual property issues, and two of those show the high court's continued interest in patent litigation, as regulated by the U.S. Court of Appeals for the Federal Circuit.
On the patent front, the court granted Highmark Inc. v. Allcare Health Management. Highmark was the target of a patent infringement suit brought by Allcare.
Neal Katyal of Hogan Lovells, lawyer for Highmark, said Allcare "has one business and one business only: licensing a vague health-care patent through the threat of litigation." After several years and million of dollars in legal costs, Highmark won on summary judgment. It then sought attorney fees from Allcare, invoking a statute that allows for award of such fees in "exceptional" cases in which the suit was baseless and brought in bad faith.
After extensive findings, the trial judge found the case exceptional and awarded fees to Highmark, but the Federal Circuit reversed. The court gave no deference to the district court's finding and based on a de novo review, determined that at least some aspects of the case were non-frivolous. The issue before the high court is whether a district court's findings deserve deference.
A brief in the case by the Blue Cross Blue Shield Association urged the Supreme Court to strike down the Federal Circuit, because allowing de novo review would dilute the law's main purpose of discouraging frivolous patent lawsuits and take away the traditional power of the trial judge to award attorney fees. Allowing the Federal Circuit ruling to stand, the brief asserted, "will only embolden parties with dubious positions to litigate, knowing that they will have not one, but two de novo opportunities" to thwart a fee award request.
Another case granted on Tueday also relates to attorney fees awarded in patent cases. Octane Fitness v. Icon Health & Fitness challenges the federal circuit's rigid standard for determining whether a case is exceptional and warrants the award of fees. Both will likely be argued early next year.
Rounding out the IP docket for the day, the court also granted review in Petrella v. MGM, brought by Paula Petrella, daughter of the screenwriter for the 1980 movie Raging Bull. At issue is whether the doctrine of laches, which discourages stale lawsuits, can be invoked copyright infringemenr cases.