Petitions / Supreme Court Activity

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 a patent case, one filed by a pro se petitioner in a veterans case, and one by another pro se petitioner in an employment case. Additionally, an amicus brief in support of a petition was filed in a patent case raising questions concerning patent eligibility; a brief in opposition was filed in another patent eligibility case; a waiver of a right to respond was filed in a patent case concerning standing; and a petitioner filed a reply in a case raising a question about the Chevron doctrine’s applicability in veterans cases. Finally, the Court denied three petitions: two in takings cases and one in a patent case. Here are the details.

Granted Cases

No new activity.

Petition Cases

New Petitions

Three new petitions were filed with the Court.

In Spireon, Inc. v. Procon Analytics, LLC, Spireon asked the Court to consider two questions:

  1. “What is the appropriate standard for determining whether a patent claim is ‘directed to’ a patent-ineligible concept under step 1 of the Court’s two-step framework for determining whether an invention is eligible for patenting under 35 U.S.C. § 101?”
  2. “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 the art at the time of the patent?”

In Hibbard v. McDonough, Hibbard, a pro se petitioner, asked the Court to consider four questions:

  1. “Whether the court erred in denying benefits based on a theory, called ‘hypothetical entitlement theory’ that has no section or definition under the United States Code Section 38, Veterans Benefits or Code of Federal Regulations Title 38 Pensions, Bonuses, and Veterans’ Relief Chapter 1 Part 3 Adjudication?”
  2. “Whether the court erred in refusing to apply, Henderson v. Shinseki, 562 U.S. 428 (2011) that explains procedural law and substantive law of filing an ‘initial claim’ for service-connected disability(ies)?”
  3. “Whether the court erred in applying an administrative agencies interpretation of a federal statute in this case – VA’s interpretation of the statute 38 U.S.C. § 1311(a)(2), that the Court admits is ambiguous?”
  4. “Whether the court erred in applying ‘the veteran had to file a claim during the veteran’s lifetime’ then benefits would have been granted under United States Code Section 38 Veterans Benefits for the ‘enhanced’ for dependency and indemnity benefit, although the veterans death was service-connected and the disability caused the death?”

In Standley v. Department of Energy, the pro se petitioner asked the Supreme Court to review the following question:

  • “Should not an agency’s Congressional budget justifications be considered compelling evidence of the agency’s belief?”

Amicus Brief

“The Chicago Patent Attorneys” submitted an amicus brief in support of the petition in Interactive Wearables, LLC v. Polar Electro Oy, a case concerning patent eligibility. According to the attorneys, the Federal Circuit’s role is to provide “harmonization and consistency over U.S. patent law as supervised by [the Supreme] Court.” The attorneys emphasize that, “[b]y not authoring an opinion, the panel left the parties and the public without further guidance towards [35 U.S.C. § 101] eligibility.” The attorneys argue, in particular, that the lack of guidance from the Federal Circuit allows “district courts to further wander away from [the Supreme Court’s] test for the proper scope of patent-eligible subject matter.” Accordingly, the attorneys urge, “this matter is an opportune case for this Court to rein in the lower courts’ inconsistent application of § 101 patent subject matter eligibility jurisprudence.”

Brief in Opposition

Olo filed a brief in opposition to the petition in Ameranth, Inc. v. Olo, Inc., a case concerning patent eligibility. Olo argues that Ameranth’s petition should be denied because “the patent at issue is part of a family of invalid related patents.” Olo contends that “two prior Federal Circuit panels unanimously held ineligible the challenged claims of four related patents asserted by [Ameranth].” In addition, Olo emphasizes that Ameranth “filed a petition to this Court for a writ of certiorari in [a prior related patent case]” and the petition was denied. Accordingly, Olo argues, “there is no basis for any different outcome here.”

Waiver of Right to Respond

Qualcomm waived its right to respond in Apple Inc. v. Qualcomm Inc., a case concerning standing of a licensee in patent suits.


In Buffington v. McDonough, which presents a challenge to the Chevron doctrine and its use in veterans’ cases, Buffington filed his reply in support of his petition. Buffington argues that the Federal Circuit’s approach to the Chevron doctrine “deprive[s] [the pro-veteran canon]—a traditional tool of construction recognized and applied by this Court for nearly 80 years—of virtually all operative force.” Buffington contends that this case presents an “opportunity to clarify what Chevron meant when it said that all ‘traditional tools of statutory construction’ must be applied” in the analysis. Moreover, Buffington emphasizes that this decision “exemplifies Chevron’s core flaws: It leads courts to abandon their normal methods of resolving legal questions, and permits agencies to say what the law is—even when there is no real sign that Congress intended agencies to exercise such power.”


The Supreme Court denied certiorari in the following cases: