Supreme Court Activity

Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. As for granted cases, we are still waiting for the Supreme Court to issue opinions in the two pending patent cases. As for petition cases, three new petitions were filed in patent, tax, and pro se cases; one petitioner filed a reply brief in a patent case; one respondent submitted its waiver of right to respond in a pro se case; and the Court dismissed one patent case and denied the petitions in two additional patent cases.

Here are the details.

Granted Cases

There is no new activity to report. We are still waiting for the opinions in United States v. Arthrex, Inc. and Minerva Surgical, Inc. v. Hologic, Inc.

Petition Cases

New Petitions

There were three new petitions filed this week.

In Ultratec, Inc. v. CaptionCall, LLC, Ultratec requested that the Court consider the following questions:

  1. “Does retroactive application of the inter partes review process violate the Due Process Clause of the Fifth Amendment to the United States Constitution?”
  2. “Does the use of Federal Circuit Rule 36 to summarily affirm decisions from the Patent Trial and Appeal Board ‘without opinion’ violate 35 U.S.C. § 144, which provides that the Federal Circuit ‘shall issue . . . its mandate and opinion’ upon its determination of appeals arising from the Patent and Trademark Office?”

In Kimble v. United States, petitioner asked the Court to review six questions:

  1. “Did the Court err in holding that Alice acted willfully, despite the lack of proof either that she had knowledge of the requirement to file an FBAR or of her intent to evade taxes?”
  2. “Did the Court’s finding of willfulness despite lack of proof of intent or knowledge improperly interpret the statute by rendering every failure to file willful, although the statute (31 U.S.C. §§5321) provides differing penalties for willful and non-willful violations?”
  3. “Did the Court err in finding that the Respondent properly assessed the maximum penalty on the Petitioner’s foreign bank account, in light of the substantial proof of the fact that the Respondent relied upon erroneous findings of fact, and that the assessment of the penalty was punitive?”
  4. “Did the Court err in holding that Alice did not preserve her argument that the 50% penalty imposed upon her account was an Excessive Fine under the Eighth Amendment to the United States Constitution?”
  5. “Was the penalty imposed upon Alice’s account ($697,229) an Excessive Fine under the Eighth Amendment to the United States Constitution?”
  6. “Did the Court err in finding that the amendments to the law [31 U.S.C. §5321(a)(5)(C)(i)] superseded IRS regulation [31 CFR §1010.820] regarding the maximum penalty that can be imposed by the IRS after a finding of a willful failure to file Foreign Bank Account Report (‘FBAR’)?”

In Mooney v. United States, a pro se petitioner filed a petition.


In Tormasi v. Western Digital Corporation, the petitioner filed his reply brief supporting his petition, which asks the Court to review questions related to an inmate’s right to assert patent infringement. Tormasi explains that “Respondent . . . ignores the broader effect of preventing access to court in response to a prison policy that categorizes enforcement of intellectual property rights as a business operation.” He asserts that “[t]he [‘no business rule’] affects more than just enforcement of patent rights—it encompasses all property rights that a prison official could qualify as a ‘business.’” Additionally, Tormasi argues that he “did not waive his constitutional arguments because he asserted ‘that the “no business” rule “was never intended to supersede [his] right to file civil lawsuits in his personal capacity,[”]’” nor did he “expressly waive[] or forcefully disavow[] arguments based on federal constitutional rights.” Nevertheless, he argues, “there are circumstances in which a federal appellate court is justified in resolving an issue not passed on below.” Tormasi argues that “[p]roper resolution of this case . . . is beyond any doubt as finding otherwise violates a plethora of constitutional rights . . . [a]nd usurping a patentee’s right to enforce his exclusionary rights, effectively rendering him without redress, is nothing if not injustice.” Tormasi further states that “many circuits had previously found that the constitutional right to access the courts was applicable to ‘general civil matter,’ but changed course after Lewis.’” He contends that “confusion exists as to whether the scope of the constitutional right to access the courts includes restraints on the government when ‘erecting barriers that impede the right to access the courts’ for ‘other types of civil actions.’” Because “[t]he circuit courts have conflicting views about Lewis . . . [t]he constitutional right to access the courts needs further clarification.”

Waiver of Right to Respond

In Turner v. Merit Systems Protection Board, the Merit Systems Protection Board submitted its waiver of right to respond.


The Court dismissed the petition in Sowinski v. California Air Resources Board pursuant to the parties’ joint motion to dismiss.


Lastly, the Court denied petitions in two cases.