Blake Coblentz and Aaron Lukas co-authored an article following up on a previous article about two issues that they will be watching closely this year relating to litigation involving small and large molecule therapies. At that time, they believed Amgen had a slim chance of its petition being granted—mainly because the Supreme Court denied a similar petition from Idenix in 2021 (No. 20-380, January 19, 2021).
However, on April 18, the Supreme Court invited the Solicitor General to file a brief expressing the views of the U.S. government on the questions presented. The Supreme Court’s likelihood of granting cert. in any particular case increases by about 10-fold when a Solicitor General’s brief is requested, but more importantly, the Supreme Court follows the Solicitor General’s recommendation about 75% of the time. See P. Gugliuzza, “The Supreme Court Bar at the Bar of Patents,” Working Paper (2019) at 23. While any real handicapping of cert. being granted in Amgen’s case will have to wait until the Solicitor General’s brief is filed later this year, in the meantime we’re reminded of Jim Carrey’s line from Dumb and Dumber: “So you’re telling me there’s a chance.”
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