Attached (here) is a transcript from Monday’s argument.
My view is that the a majority of the Court was not buying Cuozzo’s key BRI arguments. Namely, his iterative amendment argument, and his adjudicative distinction. Most of the questions for the government seemed informational (on parallel tracks a patent dispute may take (Roberts)), as opposed to the disputed issues. While issues of policy are always part of a SCOTUS appeal, I don’t see them moving the needle here absent something more. It was the “more” that will be the problem for Cuozzo..
Some notable exchanges:
Questions to To Cuozzo point out that amendment is possible in IPR, one opportunity should be enough, and policy reasons support BRI .
JUSTICE SOTOMAYOR: I might be moved by your argument if Congress had not given any right for the Board to amend, because that would be consistent with practices in the district court, where district court can’t amend under any circumstance. But basically, Congress here said you can amend once. I’m not sure that that supports your proposition.
. . . .
JUSTICE ALITO: Do the Board’s institution decisions always set out what it understands the broadest reasonable interpretation to be? And and if they do, is it must the Board stick with that throughout the proceeding? And in that if that is true, why does the patentholder need more than one opportunity to amend?
. . . .
JUSTICE KENNEDY: Well, if if the if the patent is invalid under its broadest, reasonable interpretation, doesn’t doesn’t that mean the PTO should never have issued the patent in the first place, and doesn’t that give very significant meaning and structure to this process?
As other have pointed out, Justice Beyer tipped his hand with his reference to patent trolls. Justice Ginsburg also seemed to favor the gov’t position.
On Cuozzo’s examinational vs. the adjudicative distinction the Court did not seem persuaded given other significant differences with IPR and the district courts:
JUSTICE ALITO: Is the standard is the standard of proof for invalidity the same in an infringement action in district court as it is in interpartes review?
On whether or not there is really a difference between BRI and Phillips, Justice Sotomayor commented on the same Philipps tools being at work in BRI:
JUSTICE SOTOMAYOR: Aren’t those tools used in determining the broadest the broadest reasonable reading, meaning how can the PTO decide what a broad reasonable reading is unless it looks at all of those factors and decides that the specifications and all the other things don’t cure, continue to provide ambiguity in the patent?
The Gov’t echoed these same points:
MR. GANNON: Well, I do think that it is the case that in most circumstances, these two different forms of construction are going to end up in the same place. . . .
While difficult to predict an outcome based upon oral argument questioning, the gov’t was not challenged in any significant regard on key isues. On the other hand, Cuozzo’s key arguments seemed to fall flat. I don’t expect that BRI will be disturbed.