Noted attorney and author Hal Wegner has released his first review of IP cases for the October 2005 term of the Supreme Court. Of the seven cases reviewed, two are awaiting oral argument (Unitherm and Illinois Tool); four are awaiting a certiorari decision (Schering-Plough, KSR, Lab. Corp. and eBay); and one is still before the CAFC (RIM v. NTP).
1) Unitherm v. Swift Eckrich: Appellate procedure question of when a court of appeals may overturn a civil jury verdict. Argument scheduled for November 2, 2005.
2) Illinois Tool Works v. Independent Ink: Question of whether a patent creates a rebuttable presumption of market power in a Sherman Act tying case. Argument scheduled for November 29, 2005.
3) FTC v. Schering-Plough: Whether pioneer-generic settlement duopoly settlement agreements are permissible when agreement falls within the scope of the patent. On petition for cert. Odds of being heard are good.
4) KSR v. Teleflex: Whether teaching-suggestion-motivation test for obviousness should be changed. On petition for cert. Odds of being heard are OK.
5) Lab. Corp. v. Metabolite: Whether a medical diagnosis method patent is invalid as non-patentable subject matter under Diamond v. Diehr, 450 U.S. 175, 185 (1981). On petition for cert. Odds of being heard are low.
6) eBay v. MercExchange: Whether the current de facto rule of an injunction always resulting from a finding of infringement and validity should be changed. On petition for cert. Odds of being heard are low — although this is a volatile issue.
7) NTP v. Research in Motion: Extraterritorial reach of U.S. patent law. Last fall, the court denied Pellegrini’s petition for certiorari in a somewhat similar case. These issues will be heard by the Court in some case within the next two years.