Two patent cases denied certiorari today:
- GS Cleantech Corporation, et al. v. Adkins Energy LLC, et al., No. 20-769 (Standard of review when appealing an issue decided on summary judgment that later served as the basis for an inequitable conduct finding).
- adidas AG v. Nike, Inc., No. 20-728 (are PTAB judges principal officers?)
The adidas decision confused me a bit – the court has held over other cases on the same question awaiting the outcome in Arthrex that is set for Oral arguments on March 1, 2021. Nike’s patents are challenged. U.S. Patent No. 7,814,598 and No. 8,266,749. The claims appear to be broadly directed to making a shoe-upper from cloth made in a circular knitting machine.
Has anyone here ever seen a PTAB remand, as described in MPEP1211.4, for further search?
Nike’s cert opp suggests likely reasons why the petition was denied rather than held for Arthrex.
link to supremecourt.gov
1. Adidas, the cert petition filer, was the petitioner at the PTAB. It tried and failed to challenge Nike’s patents at the PTAB. The Federal Circuit has been clear on the point that patent challengers don’t get the benefit of Arthrex. Patentees–yes: their patents were taken away involuntarily by a tribunal they say was unconstitutionally constituted. Petitioners, though, chose to go to the PTAB in the first place. It’s not unassailable, but that issue seems not to be on the table in Arthrex.
2. Adidas forfeited the issue, according to Nike. I don’t think preservation is at issue in Arthrex, but am not sure.
Obviously this is all speculation. Only the court knows why they denied cert.
adidas never raised the issue before the Fed. Cir., and Nike argued that they forfeited it (pretty persuasively to be honest).
Makes sense.
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