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Mayer Brown's Supreme Court and Appellate Practice Group distributes a Docket Report whenever the Supreme Court grants certiorari in a case of interest to the business community. We also email the Docket Report to our subscribed members and if you don't already subscribe to the Docket Report and would like to, please click here.

October Term 2013 - March 31, 2014

March 31, 2014

Today, the Supreme Court granted certiorari in one case of interest to the business community:

Patent Act—Claim Construction—Standard of Appellate Review

In patent litigation, district courts are required to construe the claims of applicable patents to determine their meaning and scope—critical threshold issues that will often prove dispositive of claims for patent infringement or invalidity. Given the significance of claim construction, many litigants appeal so-called Markman orders to the U.S. Court of Appeals for the Federal Circuit. Since 1998, the Federal Circuit has treated Markman orders as matters of law to be reviewed de novo. And last month, the Federal Circuit reaffirmed its practice of de novo review en banc in a sharply divided 6-to-4 decision.

Today, the Supreme Court granted certiorari in Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc., No. 13-854, to determine whether factual findings in patent claim construction are subject to de novo review or are entitled to the more deferential standard of review for “clear error.” Because of the role of claim construction, this case has the potential to substantially alter the course of patent litigation and the Federal Circuit’s role.

Here, Teva sued several drug companies for infringing the patents for its multiple sclerosis drug, Copaxone. The district court construed Teva’s patent claims, and based on those findings, which relied on Teva’s expert witness testimony, ruled that the defendant drug companies’ generic versions of Copaxone infringed Teva’s patents. On appeal, the Federal Circuit affirmed in part and reversed in part after ruling that it would not defer to the district court’s claim construction findings.

Teva’s petition for certiorari argues that the Federal Circuit’s use of a de novo standard of review for claim construction findings contravenes Federal Rule of Civil Procedure 52(a), which states that a district court’s “[f]indings of fact … must not be set aside unless clearly erroneous.” The respondent drug companies assert that the district court’s findings are not entitled to deference because those findings were based on expert declarations that directly contradict the patent record (as opposed to the type of historical fact evidence that is entitled to deference on appeal).

Absent extensions, amicus briefs in support of the petitioners will be due on May 22, 2014, and amicus briefs in support of the respondent will be due on June 23, 2014. Any questions about the case should be directed to Andrew J. Pincus (+1 202 263 3220) in our Washington office or Joshua Yount (+1 312 701 8423) in our Chicago office.

The Supreme Court also recently invited the Solicitor General to file a brief expressing the views of the United States in two cases of interest to the business community:

Tibble v. Edison Int’l, No. 13-550: The questions presented are:

(1) Notwithstanding the ongoing nature of ERISA's fiduciary duties, does the statute of limitations under 29 U.S.C. § 1113(1) immunize 401(k) plan fiduciaries for retaining imprudent investments that continue to cause the plan losses if the funds were first included in the plan more than six years ago?

(2) Does Firestone deference applies to fiduciary breach actions under 29 U.S.C. § 1132(a)(2), where the fiduciary allegedly violated the terms of the governing plan document in a manner that favors the financial interests of the plan sponsor at the expense of plan participants?

Moores v. Hildes, No. 13-791. The question presented is: May a plaintiff state a claim under Section 11 of the Securities Act of 1933, which provides for strict liability “on account of” defective registration statements, where he made an irrevocable investment decision to acquire his securities before a registration statement covering the issuance of those securities existed?

Mayer Brown's Supreme Court & Appellate practice ordinarily distributes a Docket Report when the Supreme Court grants certiorari in a case of interest to the business community and a Docket Report-Decision Alert when the Court decides such a case. We hope that you find the Docket Reports and Decision Alerts useful. We welcome feedback on them, which should be addressed to the general editors, Richard B. Katskee (at rkatskee@mayerbrown.com or +1 202 263 3222) and Brian D. Netter (at bnetter@mayerbrown.com or +1 202 263 3339).

Mayer Brown Supreme Court Docket Reports provide information and comments on legal issues and developments of interest to our clients and friends. They are not a comprehensive treatment of the subject matter covered and are not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed. 

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