Posts Tagged: "Brett Kavanaugh"

In Henry Schein, Inc. v. Archer & White Sales, Inc., Case No. 17-1272, Justice Brett Kavanaugh authored an opinion applying a statutory construction principle to the Federal Arbitration Act (FAA) that may foreshadow how the new Court, applying the same principle, will dramatically reshape how federal courts must approach patent eligible subject matter challenges by eliminating the judicial exceptions—abstract ideas, laws of nature and natural phenomenon—and thus moot the debate that has followed (and preceded) the Court’s Alice decision. Does Henry Schein, reflecting a unanimous Court’s interpretation of a statute, reflect a shift to now interpreting statutes such that exceptions not found in the text cannot be applied? Certainly, such an argument can be made that the three judicial exceptions to patent eligibility, which courts at all levels throughout the land have struggled over since their inception and which nowhere appear in the text of the Patent Act, could be found, unanimously, inapplicable at the Court’s next review of the issue.

On the morning of Tuesday, December 4th, the U.S. Supreme Court held oral arguments in the case of Helsinn Healthcare S.A. v. Teva Pharmaceutical USA (transcript of oral arguments here). This case asks the nation’s highest court to determine whether the sale of a patented invention which required the purchaser to keep the invention confidential (i.e.: a “secret sale”) qualifies as invalidating prior art under the on-sale bar found in 35 U.S.C. § 102(a)(1)… Justice Samuel Alito said that the most serious argument for Jay to deal with was the plain meaning of the new statutory language under the AIA; if “on sale” meant on sale publicly and privately, then the “or otherwise available to the public” language wouldn’t make much sense in the context of the statute.

As was the case with Justice Neil Gorsuch, Kavanaugh has a history of being skeptical toward the growth of the Administrative State, which means the growth of agency power is not something he has shown a predisposition to being in favor of in his decisions. Given the outsized importance of the Patent Trial and Appeal Board (PTAB) within the patent industry, and the fact that the Supreme Court has already twice mentioned “shenanigans” in PTAB procedures, another conservative Justice inclined to be skeptical about the growth of administrative power may ultimately set the stage for review of some of the more egregious PTAB violations of the Administrative Procedures Act, such as but not limited to a severe and substantial lack of judicial independence among the Administrative Patent Judges that make up the PTAB (i.e., the Office admittedly engaging in panel stacking to guarantee favored outcomes in inter partes challenges, the fact that dissents are not allowed unless approved by supervisors, and supervisors deliberating with subordinates on cases they were not assigned to handle).