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, the Court has not granted any petitions in cases decided by the Federal Circuit since our last update. One new petition, however, was filed with the Court in a case involving an appeal from the Merit Systems Protection Board. As for previously filed petitions, one amicus brief, three briefs in opposition, and one reply were filed with the Court in employment, trademark, patent, and takings cases. Additionally, the government filed a waiver of right to respond in a pro se case. Finally, the Court denied three petitions in Tucker Act, patent, and pro se cases. Here are the details.
With respect to the Supreme Court’s October 2021 term, the Court still has not granted any petitions in cases decided by the Federal Circuit.
In Esparraguera v. Department of the Army, the petitioner asked the Court to consider the following question:
- “Whether the Federal Circuit erred in holding that neither it nor the [Merit Systems Protection Board] may review a career senior executive’s removal from the Senior Executive Service under 5 U.S.C. § 3592(a)(2).”
In Australian Leather Pty. Ltd. v. Deckers Outdoor Corp., a trademark case concerning Ugg boots, the Government of the Commonwealth of Australia filed an amicus brief arguing the importance of a uniform application of doctrine of foreign equivalents among foreign sources. Moreover, the Government of the Commonwealth of Australia stated in its brief that, “[b]y refusing to bar U.S. trademarking of generic terms originating only in an English-speaking country of origin, the United States is unnecessarily discriminating against producers of products from those countries, while creating confusion for U.S. consumers as to the origin and sponsorship of the alternative sources of such products from important trading partners.” The brief urged the Court to grant the petition and resolve the “problem of consumer confusion that the foreign equivalents doctrine seeks to address.”
Briefs in Opposition
Three briefs in opposition were recently filed with the Court.
Chevron Orinite Company LLC submitted its brief in opposition in Infineum USA L.P. v. Chevron Oronite Company LLC, which involves questions related to application of the Appointments Clause in a patent case. Chevron argued that the petition should be denied because “Infineum forfeited its right to the remedy this Court promulgated in Arthrex.” According to Chevron, “Infineum did not adequately preserve its ability to benefit from a decision by this Court prescribing a different remedy for the Appointments Clause violation than the one previously chosen by the Federal Circuit.” As a result, Chevron stated, vacatur and remand are unwarranted. Additionally, Chevron asserted, “the Federal Circuit’s decision is correct and in full alignment with the position of the other courts of appeals.”
In Taylor & Sons, Inc. v. United States, the government filed a brief in opposition arguing that the lower court was correct in finding that the “Court of Federal Claims did not commit clear error in finding that the alleged taking in this case did not decrease the value of petitioners’ franchise agreements.” Moreover, the brief stated, this case would not be an ideal vehicle to address the proposed questions related to alleged takings “because petitioners’ franchise agreements were terminated as the result of a free and lawful choice of a private party (Chrysler) rather than direct governmental action.”
The United States presented this same argument in a brief in opposition in another takings case, Mike Finnin Motors, Inc. v. United States.
Reply in Support
Infinity Computer Products submitted its reply in support of review in Infinity Computer Products, Inc. v. Oki Data Americas, Inc., a case raising a question related to patent law’s definiteness requirement. Infinity Computer Products stated that the respondent’s brief in opposition “attempts to confuse issues and muddy the waters, but it offers nothing to diminish the need for this Court’s review of the decision below.” Moreover, Infinity Computer Products argued, “the Federal Circuit’s rule that courts can ignore the views of a skilled artisan if there is a supposed inconsistency in the prosecution history is inconsistent with this Court’s precedent.” According to Infinity Computer Products, granting certiorari in this case would allow the Court to answer “whether indefiniteness rests on factual issues and whether those issues must be proven by clear-and-convincing evidence.”
Waiver of Right to Respond
The government waived its right to respond in Harty v. Office of Personnel Management, a pro se case.
The Court denied review in the following three cases:
- West v. United States (Tucker Act)
- Ultratec, Inc. v. CaptionCall, LLC (inter partes review and due process; summary affirmances)
- Nastri v. Department of Homeland Security (pro se)