Supreme Court Activity

Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. With respect to the Supreme Court’s October 2021 term, which began this week, the Court still has not granted any petitions in cases decided by the Federal Circuit. Since our last update, however, two new petitions have been filed with the Court: one in a veterans case and one filed by a pro se petitioner. As for previously filed petitions, one brief in opposition and two waivers of right to respond were filed. Finally, the Court denied 22 petitions following its first conference of the new term. Here are the details.

Granted Cases

There is no new activity to report.

Petition Cases

New Petitions

In Kisor v. McDonough, the petitioner asked the Court to consider the following question:

  • “Whether the term ‘relevant official service department records’ in 38 C.F.R. § 3.156(c)(1)’s ‘reconsideration’ provision encompasses all records that ‘go to a benefits criterion,’ or is instead restricted to only those records that ‘relate to the basis of the VA’s initial denial of benefits.'”

In Johnson v. United States, a pro se petitioner asked the Court to review three questions.

Brief in Opposition

In Ultratec, Inc. v. CaptionCall, LLC, the respondent, CaptionCall, filed a brief in opposition to the petition, which alleged retroactive use of inter partes review violates the Due Process Clause and use of Rule 36 summary affirmances violates a federal statute. In its brief in opposition, CaptionCall argues that Supreme Court precedent “leaves no doubt that authorizing inter partes review of pre-[America Invents Act] patents was a reasonable congressional choice that comports with the Due Process Clause.” Moreover, CaptionCall contends that courts of appeals “possess ‘wide latitude’ in deciding whether to resolve cases through summary affirmance mechanisms like Federal Circuit Rule 36.” According to CaptionCall, when Ultratec failed to advance its due process retroactivity argument in previous rounds of appeals, Ultratec effectively waived this argument. Therefore, CaptionCall requests that Ultratec’s petition be denied.

Waivers of Right to Respond

In ENCO Systems, Inc. v. DaVincia, LLC, the respondent filed a waiver of right to respond.

Daktronics, Inc. similarly filed a waiver of right to respond in Olaf Sööt Design, LLC, v. Daktronics, Inc.


The Supreme Court denied review in the following 22 cases: