Welcome to Skilled in the Art. I'm Law.com IP reporter Scott Graham. Spring is almost here, which means the Federal Circuit calendars start to get real interesting. I've got a quick preview of a few notable arguments on tap next week. Plus, Google is calling on Mayer Brown for a copyright dispute involving Google Play music. Mintz and Reed Smith are brawling over the sleep apnea sanitizer market. And Kirkland & Ellis, Jenner & Block and Ropes & Gray are calling on the Supreme Court to revisit its 2002 Festo ruling. As always, you can email me your feedback and follow me on Twitter.

Photo: Jason Doiy/ALM

Who's Arguing?

The Federal Circuit has a full slate of arguments on tap next week. Here are a few of the cases I've got my eye on:

➤ Genentech v. Amgen. The first two anti-cancer biosilimilar drugs arrived on the U.S. market last summer. On Tuesday, Genentech will ask the Federal Circuit to pull one of them off.

Genentech had tried to enjoin Amgen from launching Kanjinti, a biosimilar of Genentech's breast cancer treatment Herceptin, last July. U.S. District Judge Colm Connolly refused on the ground that Genentech had waited until a week before Kanjinti's launch⁠—even though Amgen had served its 180-day notice of commercial marketing in 2018, revealed a "fairly specific" launch date in April 2019, and obtained FDA approval in June. Genentech's actions were "contrary to the spirit and purpose" of the Biologics Price Competition and Innovation Act, which is designed to avoid chaotic last-minute stay motions, Connolly wrote. Plus, Genentech had already licensed its Herceptin dosing patents to Mylan and others for launch in late 2019, showing that Genentech "has been able to place a value on the patents." Money damages would have to suffice.

Wilmer, Cutler, Pickering Hale and Dorr partner Robert Gunther Jr. will argue that it was Amgen who played games, by representing as recently as June that it had not decided whether to launch at risk of patent infringement. Genentech also argues that Connolly created "a categorical rule" that issuing a license—even if it only allows parties to enter the market in the future—negates a finding of irreparable harm. MoloLamken partner Jeffrey Lamken will argue for Amgen that Genentech withheld material terms of its licenses from the court and from Amgen, and so can't complain now about impacts on its exclusivity.

➤ Alfred E. Mann Foundation v. Cochlear: A lot will be on the line when appellate honchos from Finnegan, Henderson, Farabow, Garrett & Dunner and Morgan, Lewis & Bockius square off next Friday in 12-year-old litigation over implanted hearing aids.

The Alfred E. Mann Foundation for Scientific Research (AMF) and its licensee, Advanced Bionics, won a $134 million judgment in 2014. U.S. District Judge Fernando Olguin doubled it for willfulness in 2018, and the plaintiffs are now seeking an additional $133 million in prejudgment interest. So accused infringer Cochlear seems to be raising just about every argument it possibly can: AMF's comparable license analysis was faulty; the damages weren't apportioned; the royalty base was inflated; the Federal Circuit has invalidated the most valuable claims; the trial judge botched the willfulness analysis. Whew!

Finnegan partner Michael Jakes will try to make at least one of those arguments stick for Cochlear, while Morgan Lewis partner Tom Peterson will defend the judgment for AMF and Advanced Bionics.

➤ Hitkansut v. United States. The U.S. government infringed Donna Walker's patent on a method for strengthening materials. The Oak Ridge National Laboratory used her idea to win research funding, obtain patents, author publications and receive awards, all without crediting Walker or providing compensation. After six years of litigation, Walker's Hitkansut LLC won a $200,000 judgment at the Court of Federal Claims. Now Hitkansut is trying to become the first litigant to make an award of attorneys fees stick under a 1996 amendment to 28 U.S.C. 1498(a). The Court of Federal Claims awarded $4.3 million under that provision, which makes fees available to small inventors and nonprofits unless the government's position was "substantially justified."

Gary Hausken, the director of the Civil Division's IP staff, will argue Thursday that Judge Charles Lettow erred by taking into account the government's pre-litigation conduct—violating an NDA and failing to credit Walker—in finding that it was not substantially justified. He'll also point out that Hitkansut sought about $5 million in damages but recovered only $200,000. Dickinson Wright partner John S. Artz will argue that it was the government's non-reality based arguments about enablement, obviousness and patent eligibility that were unjustified, and that infringement—not damages—was the primary issue decided in the trial.

Judy Garland's version of the Ray Henderson song "Just a Memory," from her 1957 album Alone, is presented on Google Play by Limitless Recordings International, left, and by Capitol Records, right, per the allegations in Ray Henderson Music. v. Google.

➤ Four Jays Music v. Google, Ray Henderson Music v. Google. Last month I wrote about copyright suits filed against Google, Amazon and a couple of obscure music distribution companies, accusing them of pirating wide swaths of music recorded by the likes of Judy Garland and Miles Davis.

Owners of the rights to compositions by Ray Henderson and Harry Warren accuse Limitless International Recordings, Valleyarm Digital Ltd. and others of selling unauthorized downloads on Google Play and Amazon.com while the tech giants turn a blind eye.

Google has now called on Mayer Brown to represent it in the Northern District of California litigation. Partner John Mancini, senior associate Gray Buccigross and associate Olena Ripnick-O'Farrell have entered appearances for Google and its holding companies.

No official word yet as to who'll be representing Amazon.

➤ SoClean v. Sunset Healthcare Solutions. Mintz, Levin, Cohn, Ferris, Glovsky and Popeo and Reed Smith are wide awake and slugging it out in Massachusetts federal court over the $150 million market for disinfecting sleep apnea equipment.

New Hampshire-based SoClean markets the SoClean 2, an automated, ozone-based system for disinfecting the masks and hoses that connect to continuous positive airway pressure devices. SoClean's Feb. 20 complaint accuses Chicago-based Sunset of surreptitiously developing its competing Zoey system while acting as SoClean's distributor.

SoClean is asking U.S. District Judge Indira Talwani to enjoin Sunset from marketing the Zoey or promoting it at the Medtrade convention in Las Vegas next week. SoClean is represented by Mintz partners J. Joseph Hameline and Thomas Winter and associate Clancy Galgay.

Reed Smith partners Jennifer DePriest and Brian Roche and counsel Lawrence James represent Sunset along with Burns & Levinson partner Andrea Martin. They say Sunset independently developed a differently configured, more user-friendly disinfecting system and accuse SoClean of seeking a monopoly based on unsupported allegations.

On a Tangential Note …

Big food and pharma companies have hired some big guns in an effort to get the Supreme Court to clarify Festo v. Shoketsu Kinzoku Kogyo Kabushiki, its 2002 decision on prosecution history estoppel and the doctrine of equivalents.

In Festo the court said that when a patentee responds to a rejection by narrowing its claims, that prosecution history estops them from later arguing that the subject matter covered by the original claim was an equivalent. But the high court carved a few exceptions to the rule, such as when the rationale for an amendment "may bear no more than a tangential relation to the equivalent in question."

Pfizer subsidiary Hospira, generic drug maker Dr. Reddy's Laboratories and Korean food company CJ CheilJedang filed separate cert petitions Monday arguing that the Federal Circuit has opened that exception so wide that it's hard to tell precisely what patent owners are claiming.

Jenner & Block partner Adam Unikowsky argues for Hospira that the Federal Circuit has developed its own doctrine of "tangentiality" untethered from Festo's original teachings. Kirkland & Ellis partner John O'Quinn argues for Dr. Reddy's that two conflicting tangentiality doctrines have emerged within the Federal Circuit. And Ropes & Gray partner Douglas Hallward-Driemeier argues for CJ CheilJedang that the rationale underlying the amendment must be provided at the time of the amendment, not made up post hoc.

All three, naturally, argue that their case provides the ideal vehicle for review. CJ CheilJedang has the benefit of a dissenting opinion from Federal Circuit Judge Timothy Dyk, who emphasized that the tangentiality exception should be construed narrowly.

Eli Lilly & Co., which prevailed over Hospira and Dr. Reddy's at the Federal Circuit, will have something to say about this. So will the U.S. government, which successfully defended the ITC judgment over CJ CheilJedang, along with real party Ajinomoto Co.

 That's all from Skilled in the Art this week. I'll see you all again on Tuesday.