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 granted certiorari in a veterans case. The Court also requested the Solicitor General to file a brief expressing the views of the United States in a patent case. No new petitions were filed, but one amicus brief was submitted in support of a petition in a patent case and a waiver of right to respond was filed in a pro se case. Additionally, the Court denied four petitions: two in patent cases and two in pro se cases. Here are the details.
As discussed below, the Supreme Court granted a petition in a case decided by the Federal Circuit.
The Supreme Court granted the petition for certiorari in George v. McDonough, which presents a question about clear and unmistakeable error in the context of veterans’ claims.
Call for the Views of the Solicitor General
Earlier this month, the Court invited the Acting Solicitor General to file a brief on behalf of the United States in Olaf Sööt Design, LLC v. Daktronics, Inc., a patent case that raises a question related to the intersection of the Seventh Amendment right to a jury trial and a changed claim construction on appeal.
There were no new petitions filed since our last update.
In Intel Corporation v. VLSI Technology LLC, Unified Patents, LLC filed an amicus brief in support of the petition. The brief argues that the Patent Office’s approach to timeliness with regard to post-issuance proceedings brought by accused infringers amounts to an abuse of discretion. In its brief Unified Patents argues that, while “the Patent Office has some discretion on institution decisions . . . it does not have discretion unbound and severed from the statute.” Specifically, Unified Patents asserts that the agency supplanted the time limit set by Congress, the agency cannot promulgate regulations to fill the statutory gap, if any, left by Congress, and that “a review of the statute and its legislative history shows that Congress intended the agency’s discretion to be a ‘safety valve’ that could protect the [Patent Trial and Appeal Board] from being overwhelmed by a backlog of [inter partes review] petitions.”
Waiver of Right to Respond
The United States waived its right to respond in Straw v. United States, a pro se case.
The Court denied the petitions in the following cases:
- Mylan Laboratories Ltd. v. Janssen Pharmaceutica, N.V. (patent case)
- Apple Inc. v. Optis Cellular Technology, LLC (patent case)
- Gaylord v. McDonough (pro se)
- Bongiorno v. Hirshfeld (pro se)