Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. With respect to granted cases, since our last update there is no new activity to report. With respect to petitions, three new petitions have been filed: one in an Equal Access to Justice Act case and two in patent cases raising questions related to eligibility and enhanced damages; members of Congress filed an amicus brief in an employment law case that involves interpretation of the Reservists Pay Security Act; the government submitted a brief in opposition in a case concerning the Tucker Act and another brief in opposition was filed in a patent case addressing the non-obviousness requirement; the government waived its right to respond in a pro se case; and the Court denied review in four cases. Here are the details.
No new activity.
Three new petitions were filed with the Court.
In Athey v. United States, the Supreme Court was asked the following question:
“Did a panel of the Federal Circuit err by entirely exempting the United States as a matter of law from liability for such fees and costs pursuant to the American Rule despite the explicit wording of the statute and the precedent of Gavette and Mortenson that Congress had ‘expanded’ the common law in 2412(b) to shift liability for attorney fees and costs to the United States, subject to the reasonable discretion of the trial court?”
In Interactive Wearables, LLC v. Polar Electro Oy, the Court has been asked to consider three questions:
- “What is the appropriate standard for determining whether a patent claim is ‘directed to’ a patent-ineligible concept under step one of the Court’s two-step framework for determining whether an invention is eligible for patenting under 35 U.S.C. § 101?”
- “Is patent eligibility (at each step of the Court’s two-step framework) a question of law for the court based on the scope of the claims or a question of fact for the jury based on the state of art at the time of the patent?”
- “Is it proper to apply 35 U.S.C. §112 considerations to determine whether a patent claims eligible subject matter under 35 U.S.C. § 101?”
In Cisco Systems, Inc. v. SRI International, Inc., Cisco asked the Court to review two questions:
- “Whether enhanced damages under 35 U.S.C. § 284 may be awarded absent a finding of egregious infringement behavior;” and
- “Whether the court of appeals may award enhanced damages without first allowing the district court to exercise its discretion to decide that issue.”
Several members of Congress filed an amicus brief in Adams v. Department of Homeland Security stating that the “bipartisan Reservists Pay Security Act was written to ensure that federal employees in the National Guard and Reserves do not suffer a loss of income when they are called to active military duty.” In addition, the members of Congress argued that the statute is intended to be applied broadly and, they say, if the Federal Circuit’s decision were to stand, it would “severely burden a significant number of Americans solely because they wear the Nation’s uniform.”
Briefs in Opposition
The United States submitted a brief in opposition in Sandwich Isles Communications, Inc. v. United States, a case which raises questions related to the Tucker Act. The government argued that the Court denied review in a similar case and, therefore, the petition in this case should likewise be denied. Moreover, the government asserted that the Federal Circuit was correct in disallowing petitioner’s takings claim to proceed under the Tucker Act “because the Communications Act provides the exclusive path for review of that claim.”
In Baxter Corp. v. Beckton, Dickinson & Co., a brief in opposition was filed, asserting that the petition “presents entirely new arguments to challenge the Federal Circuit’s ruling that the claims of U.S. Patent No. 8,554,579 (’579 patent) would have been obvious in light of two prior art patents.” Accordingly, the brief argues, “Baxter’s forfeiture of its arguments deprived the Federal Circuit of the opportunity to address them and is, by itself, fatal to Baxter’s petition.” Additionally, the brief argued that this case is a poor vehicle to address the issues presented because the petitioner’s arguments “quickly devolve into a factbound challenge to a decision that involved no error.”
Waiver of Right to Respond
The government waived its right to respond in Williams v. United States, a case filed by a pro se petitioner.
- Intel Corporation v. VLSI Technology LLC (patent case)
- Pride v. McDonough (pro se case)
- Snyder v. McDonough (veterans case)
- Heat On-The-Fly, LLC v. Energy Heating, LLC (patent case)