Campbell’s Fed Circ win should get Arthrex review, rival says
A company that sued Campbell Soup for infringing its soup can dispenser patents has asked the US Supreme Court to vacate a US Court of Appeals for the Federal Circuit decision invalidating those patents in light of last year’s Arthrex decision.
The Federal Circuit handed down a precedential ruling that held two of Gamon Plus’ can dispenser patent invalid for obviousness, overturning two Patent Trial and Appeal Board (PTAB) decisions upholding the patent's validity.
In a petition for writ of certiorari docketed with the Supreme Court on Monday, January 24, Gamon has requested that it vacate the Federal Circuit’s decision and remand the matter back to the US Patent and Trademark Office (USPTO) in light of the Supreme Court’s decision in Arthrex.
The Arthrex decision ruled that the powers wielded by judges appointed to the PTAB were incompatible with the appointments clause of the US Constitution and that any party that has their patents invalidated in an inter partes decision should be able to request a review of the decision from the acting USPTO director.
Gamon says that neither the PTAB nor the Federal Circuit, had the constitutional authority to rule the patents invalid in light of the decision in Arthrex as it had no opportunity to request a review of the PTAB’s final decisions.
“The inter partes reviews here, as altered by the Federal Circuit’s ruling, if allowed to stand, would result in the patents being invalidated in a procedure that was completely insulated from executive review. which this court has held is a violation of the Appointments Clause,” Gamon said.
To support its bid, Gamon highlights several similar cases that have been granted a grant, vacate and remand (GVR) order by the Supreme Court, including Infineum USA v Chevron Oronite (2021) and Polaris Innovations v Kingston Tech (2021).
Case background
Gamon first sued Campbell in 2015, alleging that the soup giant infringed two of its design patents US D621,645 and D612,646 which cover an “ornamental gravity feed dispenser display”.
Campbell subsequently filed petitions for inter partes review of the two patents at the PTAB, which stayed the district court action pending the resolution of the review.
In July 2020, the PTAB issued its final written decisions on the review, claiming that the two patents were both valid.
Campbell Soup appealed the decision to the federal circuit which led to another decision that “modified almost all of the fact findings of the PTAB” and held that the ‘645 and ‘646 design patents were invalid, according to Gamon.
Now, Gamon seeks to appeal this decision, submitting its petition for certiorari to the Supreme Court on January 24, 2021.
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