SCOTUS invites SG to weigh in on Cox/Sony Cases; denies petition charging that Newman’s removal harms patent owners

Support IPWatchdog with an individual sponsorship: Click here

“The Miller Mendel SCOTUS petition explained that ‘effectively removing an Article III judge, one of the most experienced and perceived patent friendly appellate judges on the Federal Circuit’…raises serious constitutional questions.”

The U.S. Supreme Court today invited the Solicitor General (SG) to weigh in on a case about internet service provider (ISP) liability for infringement and denied another petition for certiorari asking the Court to clarify U.S. patent eligibility law. The petition also asked that the Court consider whether Judge Pauline Newman’s removal from the U.S. Court of Appeals Federal Circuit (CAFC), has deprived patent holders of a fair hearing in front of a duly constituted appeals panel. al. The Supreme Court’s order listing today invited the Solicitor-General to file a short in both cases. Cox Communications, in an October brief opposing Sony’s certiorari petition, charged that “petitioners want make a terrible situation worse.” The case involved claims by music publishers, including Sony, Arista Records and Warner Music against Cox, in July 2018, that claimed Cox was liable in the infringement of 10,000 musical works illegally distributed by subscribers. In 2020, a jury found Cox liable for vicarious and contributing infringement. Damages were increased to $1 billion after the jury’s finding of willfulness. Then, in February of this year, the Fourth Circuit ruled on Cox’s appeal, affirming the willful contributory infringement finding but remanding for a new trial on damages after overturning the vicarious liability finding for lack of Cox’s profit directly attributable to its subscribers’ acts of infringements.

Cox petitioned the Supreme Court in August 2024 asking whether the Fourth Circuit erred in finding that Cox materially contributed to infringement merely because it did not terminate Internet access to subscribers who were alleged to have committed infringement without proof. The petition also asks whether mere knowledge that infringement has occurred is sufficient to establish willfulness under 17 U.S.C. SS 504 (c). The request for the SG’s views indicates that the Court is likely to grant at least one of the petitions. The request for the SG’s views indicates the Court is likely to grant at least one of the petitions.[p]Eligibility Petition Denied

In Miller Mendel v. Anna, TX, the Court today denied a petition for writ of certiorari asking the Justices to consider the effects on patent owners of CAFC Chief Judge Kimberly Moore’s effective removal of Judge Newman from the Federal Circuit due to alleged misconduct related to her refusal to submit to the CAFC’s preferred medical experts for testing to prove she is not cognitively impaired. The Special Committee of the Federal Circuit, which has been investigating her alleged conduct since July 2024, renewed its recommendation that she be suspended from hearing cases on the panel or en bloc level for another year. Newman was tested by three different neurological experts. The CAFC’s decision was precedent-setting and authored by Judge Cunningham. The decision was precedential and authored by Judge Cunningham.

Aside from the question about Judge Newman’s treatment by the court, Miller Mendel was also asking the High Court to consider questions relating to the proper use of Rule 12(d) of the Federal Rules of Civil Procedure; whether the current judicial exception to patentability for abstract ideas for Section 101 “allows courts to invalidate patents arbitrarily without factual development or evidentiary support, thus undermining the predictability and stability necessary for the patent system to function effectively”; and whether the Court should eliminate the judicial exception altogether.

With respect to the petition’s argument about Judge Newman, Miller Mendel explained that “effectively removing an Article III judge, one of the most experienced and perceived patent friendly appellate judges on the Federal Circuit and who has been particularly critical of the Federal Circuit’s jurisprudence regarding ‘abstract ideas,'” raises serious constitutional questions. The petition also said that Newman’s removal prejudiced Miller Mendel, since without her, there was not even a possibility that “the Federal Circuit’s most experienced and vocal critic of Section 101 jurisprudence” could have been appointed to the panel.

Further, the petition argued that the Judicial Disability Act, “as applied in this case, allowed co-equal judges to sideline a judge known for her critical views on patent jurisprudence, particularly regarding the controversial abstract idea doctrine.”

Image rights acquired by AdobeStock

Eileen McDermott

Eileen McDermott, Editor-in Chief of IPWatchdog.com is a veteran IP and legal journalist. Eileen McDermott is a veteran IP journalist and has held editorial and management positions at

Story originally seen here