Supreme Court Requests Brief in Opposition in American Axle after NYIPLA Files Amicus Brief


On January 25, 2021, the New York Intellectual Property Law Association (“NYIPLA”) filed an amicus brief urging the U.S. Supreme Court to grant a writ of certiorari in American Axle & Manufacturing Co. Inc. v. Neapco Holdings LLC, No. 20-891. See Brief of New York Intellectual Property Law Association as Amicus Curiae in Support of Petitioner, available HERE.

In its brief, the NYIPLA urged the U.S. Supreme Court to grant certiorari to clarify the law of patent eligibility, since, despite the plain and clear language of Section 101 of Title 35, there are conflicting interpretations of Supreme Court precedent on patent-eligible subject matter.  In particular, the NYIPLA noted that the decision below was contrary to Diamond v. Diehr, 450 U.S. 175 (1981).

On January 29, 2021, four days after the Association filed its brief and the same day another amicus brief was filed by the Alliance of U.S. Startups & Inventors for Jobs, the Supreme Court requested a brief in opposition be filed by Respondent.  The Brief in Opposition is due by March 1, 2021, which is the same day that the Court will hear oral argument in the Arthrex case. (In Arthrex, the Supreme Court accepted certiorari in a manner consistent with the amicus brief submitted by the Association.)   The fact that the Court has called for a Brief in Opposition here means that at least one Justice or law clerk for a Justice thinks the Petition is worthy of further review and should be included on the Court’s “discuss list.”  The Association will continue to monitor report on this case as developments occur.

Counsel for the NYIPLA on the brief include Charles R. Macedo, principal counsel, David P. Goldberg and Chandler E. Sturm from Amster, Rothstein & Ebenstein LLP, Colman B. Ragan, President of the New York Intellectual Property Law Association, Robert M. Isackson and Melvin C. Garner from Leason Ellis LLP, Robert J. Rando from Taylor English Duma LLP, Thomas Landman from Wiggin and Dana LLP, William J. Thomashower from Pryor Cashman LLP, Kathleen Waybourn from the Law Office of Kathleen A. Waybourn, and Ksenia Takhistova.