Supreme Court Activity

Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. Since our last update two new petitions were filed, one raising a question related to patent law’s definiteness requirement and one in a pro se case. Two amicus briefs were filed in a case raising questions concerning the clear and unmistakeable error standard with regarding to a claim for veterans’ benefits. Two waivers of the right to respond to petitions were filed in government contracts and pro se cases. A reply was filed in support of a petition in a veterans case. And, finally, a supplemental brief was filed in a government contracts case. Here are the details.

Granted Cases

There is no new activity to report.

Petition Cases

New Petitions

Two new petitions were filed with the Court.

In Infinity Computer Products, Inc. v. Oki Data Americas, Inc., the petitioner asked the Court to consider the following question:

  • “Whether a patent claim is indefinite under § 112, ¶ 2, if conflicting positions about a claim term arise during the patent prosecution process, even if uncontradicted expert testimony established that the term has a reasonably certain meaning to those skilled in the art.”

A pro se petitioner filed a petition in Nastri v. Department of Homeland Security.

Amicus Briefs

Jeremy C. Doerre, an attorney, filed an amicus brief in support of the petitioner in George v. McDonough, a case presenting a question about clear and unmistakeable error in the context of veterans’ claims. Doerre argues that 38 C.F.R. § 20.1403 “cannot reasonably be construed to cover the situation where a plainly erroneous statutory interpretation represented clear and unmistakable error even before any ‘change in the interpretation of the statute.’”

In this same case, Military-Veterans Advocacy filed an amicus brief arguing that the “Federal Circuit’s erroneous interpretation of the CUE statutes injects serious problems into an administrative regime already riddled with them.” The amicus brief goes on to say that “Congress enacted CUE to serve as a safety valve that suspends the usual consequences of finality and ensures that veterans subjected to these sorts of errors are ultimately able to obtain [their] benefits.” Therefore, according to the brief, “if the decision below is permitted to stand, that safety valve is gone.” Moreover, the brief asserts, “the pro-veteran canon of statutory construction would compel the conclusion that the court of appeals’ decision is wrong.” Thus, Military-Veterans Advocacy argues, the Court should grant the petition for certiorari and reverse.

Waivers of Right to Respond

In Pyrotechnic Specialties, Inc. v. Secretary of Defense, a government contracts case, the government filed a waiver of its right to respond to the petition.

In Bondyopadhyay v. United States, a pro se case, the government also filed a waiver of right to respond.


The petitioner in Garvey v. McDonough filed its reply brief. This is another veterans case raising a question related to statutory interpretation. In the reply brief, Garvey argues that “[t]he Secretary’s regulation at 38 C.F.R. § 3.12(d)(4) is not consistent with the unambiguous definition of a ‘veteran’ provided by Congress in 38 U.S.C. § 101(2).” According to Garvey, “because the only purpose of § 101(2) is to determine who is or is not a veteran,” it logically follows that “the only qualification for [dependency and indemnity compensation] is that the claimant be the surviving spouse of a veteran.” Ultimately, Garvey argues that Section 3.12(d)(4) is neither “necessary and appropriate in order to carry out the laws [the Secretary] administers” nor “consistent with those laws.”

Supplemental Brief

In Oracle America, Inc. v. United States, a case that raises questions related to bid protests, Oracle filed a supplemental brief asserting that “the government has not met its heavy burden of establishing mootness” and therefore the petition should be granted. More specifically, Oracle asks that the Court “hold the petition until the Department of Defense establishes that the new procurement does not reproduce the legal defects of the old one.” Oracle, however, contends that, should the Court find this case moot, “the Court should vacate the decision below and remand in accordance with its ordinary practice.”