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, the Court still has not granted any petitions in cases decided by the Federal Circuit. Two new petitions, however, were filed with the Court: one in a trade case and one in a takings case. As for previously filed petitions, one brief in opposition and three reply briefs were filed with the Court in patent, Tucker Act, and takings cases. Additionally, the government filed a waiver of right to respond in a pro se patent case, and the Court denied a petition in another pro se case. Here are the details.

Granted Cases

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.

Petition Cases

New Petitions

In Transpacific Steel LLC v. United States, the petitioner asked the Court to consider the following questions:

  1. “Whether the President acted outside of the scope of the statutory authority Congress granted under section 232 [of the Trade Expansion Act of 1962] by doubling the tariff on steel imports from Turkey after the expiration of the statutory periods for presidential action specified in section 232(c)(1)?”
  2. “Whether section 232, as construed by the Federal Circuit majority in this case to eliminate mandatory deadlines for presidential action, is inconsistent with this Court’s ruling in Federal Energy Administration v. Algonquin SNG, Inc., 426 U.S. 548 (1976), and is therefore an unconstitutional delegation of legislative power to the President in violation of Article I, section 8 of the Constitution and principle of separation of powers because it cedes to the President the virtually unbounded power to tax and otherwise regulate imports?”

In Sandwich Isles Communications, Inc. v. United States, the Court is asked to review one question:

  • “Whether the lower court’s holding that a regulatory taking claim based on confiscatory rates must be made at the Federal Communications Commission ‘within the comprehensive statutory scheme established by the Communications Act’ denies Petitioner’s right to due process of law because the precedents, including the precedents of this Court, hold that a regulatory taking claim of this nature would be premature at any time it could be made under the Federal Communications Commission’s procedures.”

Brief in Opposition

Daktronics filed its brief in opposition to the petition in Olaf Sööt Design, LLC v. Daktronics, Inc., a patent case in which the petitioner raised a question regarding claim construction. In response, Daktronics first argued the petition raises a routine claim construction dispute not worthy of Supreme Court review. Anyway, according to Daktronics, the petitioner “attempted to give a tortured meaning to a clear element in the hope of ensnaring Daktronics’ winch and obtain an infringement finding.” Daktronics also suggested in its brief that the petitioner “is asking this Court to rewrite its Markman decision.” Daktronics argued that this case is not deserving of review and should be denied.

Replies in Support of Petitions

Taylor & Sons filed its reply in support of its petition in Taylor & Sons, Inc. v. United States, arguing that the Court should grant certiorari because the Tucker Act claims presented in this case raise unique questions of constitutional law. Specifically, Taylor & Sons stated, this case is “an excellent vehicle for this Court to examine the economic impact factor of the Penn Central Transportation Co. v. City of New York regulatory takings test.” Taylor & Sons also asserted that, given “the intra-circuit split within the Federal Circuit,” the Court should grant certiorari.

In Mike Finnin Motors, Inc. v. United States, another case involving a takings claim, Mike Finnin Motors filed its reply in support of its petition, emphasizing that “the Government must pay adequate compensation to citizens whose private property it took and diverted to others who it hoped would benefit the public by using it more productively.” Mike Finnin Motors argued that the government failed to deny a majority of the petition’s claims and, therefore, review should be granted.

Mylan Laboratories likewise submitted its reply in support of its petition in Mylan Laboratories Ltd. v. Janssen Pharmaceutica, N.V., which raised two question related to appeal of denials of petitions for inter partes review and the legality of certain law developed by the Patent Trial and Appeal Board. Regarding the first question, Mylan explained that “Section 1295 [of Title 28] confers a complete right to appeal adverse decisions of the Board.” Moreover, Mylan argued, “the debate over [SAS Inst. Inc. v. Iancu]’s application only underscores the need for this Court’s review.”

Waiver of Right to Respond

The government filed a waiver of right to respond in Bongiorno v. Hirshfeld, a pro se patent case.


The Court denied review in Johnson v. United States, another pro se case.