Supreme Court Denies Certiorari in Three Patent Cases

The Supreme Court announced on Monday, January 8, 2024, it has denied certiorari petitions in three patent cases that we have been watching. This leaves the Federal Circuit rulings intact.  It also means that the court is unlikely to hear a patent case this term.
The first case is Intel Corp. v. Vidal , which challenged the Patent Trial and Appeal Board’s “ Fintiv rule.” This policy allows the PTAB to use the director’s delegated discretion to deny inter partes review petitions if, for instance, parallel litigation in district court is progressing quickly. Intel argued the rule is arbitrary, overly restrictive, and skirted proper rulemaking procedures. But the Federal Circuit said decisions on whether to institute reviews cannot be appealed. Although the Supreme Court has declined to take-up the issue, Dir. Vidal has already narrowed the approach taken under Dir. Iancu and will potentially go further.
The second case, Realtime Data v. Fortinet , involved eligible subject matter under 35 U.S.C. 101. Realtime alleged the Federal Circuit had expanded eligibility exceptions too broadly and asked SCOTUS to reinforce that most inventions should qualify as patentable. However, the Court turned down Realtime’s appeal.
Finally, Traxcell Techs v. AT&T raised a narrow question on whether attorney’s fees can be awarded for “baseless” litigation actions taken after a magistrate judge’s recommendation but before final confirmation by the district judge. Here too though, the Supreme Court denied cert, leaving the Federal Circuit’s answer that “yes, fees were appropriate.” (paraphrasing).
With these three denials on widely-varying patent issues, the Court seems inclined to let CAFC precedent control in these areas for now.
There are still two pending petitions, with VirnetX having a much greater shot than Tehrani .

VirnetX Inc. v. Mangrove Partners Master Fund, Ltd ., No. 23-315. The VirnetX petition focuses on the Federal Circuit’s interpretation of the inter partes review (“IPR”) joinder provisions and the requirements of the Federal Vacancies Reform Act (“FVRA”).  Both Cato and BIO filed briefs in support of the petition.
Tehrani v. Hamilton Technologies LLC , No. 23-575.  The petition raises issues of obviousness, expert qualifications, claim interpretation, etc.  I wrote previously that although the issues are super interesting, “the petition largely re-argues the evidence — typically a losing approach at the Supreme Court” petition stage.