Petitions / Supreme Court Activity
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Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. This week six new petitions were filed, along with a response to a petition and a reply in support of a petition. The Court denied one petition. Here are the details.

Activity in Granted Cases

There is no new recent activity to report in granted cases.

Activity in Petition Cases

Grants and Denials

The Supreme Court did not grant any petitions in cases decided by the Federal Circuit. The Court did, however, deny the petition in Zafer Construction Co. v. Army Corps of Engineers, a government contracts case.

New Petitions

Six new petitions were filed this week.

In Mushkin, Inc. v. Anza Technology, Inc., the petitioner asks the Court to review the following four questions:

  1. “Whether the appropriate standard of review for a ‘relation back’ determination under Fed. R. Civ. P. 15(c) is: (1) the de novo standard of review applied by the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Ninth and Tenth Circuit Courts of Appeal, (2) the abuse of discretion standard of review applied by the Eighth, Eleventh, and District of Columbia Circuit Court of Appeals, with Eighth and Eleventh Circuits applying a clear error standard of review for factual findings, (3) the de novo standard of review applied by the Federal Circuit Court of Appeals in the present case, with fact findings reviewed for clear error, or, (4) the clear error standard of review supported by this Court’s recent precedent, U.S. Bank v. Village at Lakeridge, for appellate review of case-specific factual determinations made by a district court?”;
  2. “What is the proper test for a ‘relation back’ determination under Fed. R. Civ. P. 15(c)(1)(B) in light of the 1991 and 1993 Amendment to Rule 15(c), which eliminated the notice requirements from the ‘conduct, transaction, or occurrence’ provision of Fed. R. Civ. P. 15(c)?”;
  3. “Whether the court of appeals in the present case erred in its ‘relation back’ analysis under Fed. R. Civ. P. 15(c)(1)(B) by establishing, and relying on, a ‘liberal notice-based’ interpretation of the ‘conduct, transaction, or occurrence’ provision of Fed. R. Civ. P. 15(c)(1)(B)?”; and
  4. “Whether claims withdrawn from the scope of the original proceedings can be re-asserted later in an amended pleading using the ‘relation back’ doctrine under Fed. R. Civ. P. 15(c)(1)(B) in the absence of a retraction of that withdrawn position?”

In Collabo Innovations, Inc. v. Sony Corp., the Court was asked to review two questions:

  1. “Does the retroactive application of inter partes review to a patent that issued before the passage of the Leahy–Smith America Invents Act, Pub. L. No. 11-29, 125 Stat. 284 (2011), violate the Takings Clause of the Fifth Amendment?”; and
  2. “Does the retroactive application of inter partes review to a patent that issued before the passage of the Leahy–Smith America Invents Act, Pub. L. No. 11-29, 125 Stat. 284 (2011), violate the Due Process Clause of the Fifth Amendment?”

In Reese v. Sprint Nextel Corp., the following two questions were presented to the Court:

  1. “Whether this case provides an appropriate vehicle for this Court to state with clarity and certainty the definition of an ‘abstract idea’ under 35 U.S.C. § 101, so courts below can correctly determine at step one of Alice whether claims at issue are directed to a patent- ineligible concept”; and
  2. “Whether the panel’s decision conflicts with this Court’s jurisprudence related to step one of Alice by failing to correctly determine whether the claims at issue are directed to a patent-ineligible concept.”

In Chestnut Hill Sound Inc. v. Apple Inc., the petitioner asks the Court the following questions related to the Federal Circuit’s use of Federal Circuit Rule 36, which is entitled “Entry of Judgment – Judgment of Affirmance Without Opinion”:

  1. “Can a court ever choose to write reasoned opinions for one class of losing appellants and not another under the Due Process and Equal Protection Clauses; and if so, how disparate can the issuance rates of reasoned opinions, versus summary affirmations, be for different classes of appellants?”; and
  2. “Is the Public entitled to reasoned opinions when the absence of those opinions diminishes the Public’s right of access to the courts and ultimately results in the erosion of the Rule of Law?”

In Hollingsworth v. Department of Veterans Affairs, the Court was asked to review the following two questions:

  1. “Are USERRA’s reemployment rights applicable to federal employees during their probationary period? If so, may an agency-employer terminate an employee during a probationary period without considering reasonableness of the termination for the conduct in question and providing fair notice that the conduct in question would be constitute case for discharge, despite OPM’s regulations?”; and
  2. “Whether the Merit Systems Protection Board committed harmful error by applying a legal standard to the reemployment rights of a probationary employee serving in the uniformed services that conflicts with USERRA and the corresponding regulations as promulgated by OPM?”

Finally, in Francway v. Wilkie, the following two questions were presented to the Court:

  1. “Whether the court of appeals erred in holding that the VA enjoys a presumption that its medical examiner is competent in every veterans-benefit case”; and
  2. “Whether the court of appeals erred in expanding the presumption of competency so that the VA and reviewing courts presume, not only that VA medical examiners are competent, but also that they are specialists in the relevant area of medicine.”

New Responses

In Park Properties Associates, L.P. v. United States, the United States filed a brief in opposition to the petition. In its brief, the government restates the question presented as “[w]hether the Court of Federal Claims’ Tucker Act jurisdiction over ‘any claim against the United States founded . . . upon any express or implied contract with the United States,’ 28 U.S.C. 1491(a)(1), extends to claims based on contracts that expressly identify as parties private property owners and a state public housing authority, but not the United States or a federal agency.”

In Intel Corp v. Continental Circuits, LLC, Continental Circuits waived its right to respond to the petition, which presented a question related to the law governing claim construction in patent cases.

New Replies

In Garmin USA, Inc. v. Cellspin Soft, Inc., Garmin USA, Inc. and Garmin International, Inc. filed a reply arguing that “[t]he issue of whether eligibility is a question of law amenable to decision on the pleadings comes up in hundreds of cases a year, and the decision below [allowing for fact finding in an eligibility analysis] will result in tremendous inefficiencies and deadweight losses.” Moreover, according to their brief, “Cellspin has no compelling legal or empirical response” and, as a result, “[t]he Federal Circuit’s wrong turn should be righted.”