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 cases with pending petitions, one new petition was filed by a pro se petitioner; the government filed a waiver of right to respond in another case submitted by a pro se petitioner; and another pro se petitioner submitted his reply brief. Finally, the government submitted the views of the United States in two patent cases: one raising questions about eligibility and another raising a question about standing. Here are the details.

Granted Cases

We are waiting for the Court’s opinion in George v. McDonough, a case about the clear and unmistakable error standard that veterans may invoke to challenge VA decisions.

Petition Cases

New Petitions

One new petition was filed with the court:

In Alford v. Merit Systems Protection Board, Alford, a pro se petitioner, asked the Court to consider two questions:

  1. “Did the Merit Systems Protection Board violate Petitioner’s civil rights of due process when an administrative judge failed to provide Petitioner a hearing request with witness as requested, after not receiving any responses from the Committee for Purchase, as held by this Court in Opp Cotton Mills v. Administrator, 312 U.S. 216 (1941), haven’t been met?”
  2. “Why has my case reached the US Supreme Court if my Case was never heard by the District or Circuit Court?”

Waiver of Right to Respond

The government waived its right to respond in Standley v. Department of Energy, another Merit Systems Protection Board case brought by a pro se petitioner.


In Adams v. Department of Homeland Security, yet another Merit Systems Protection Board case, this one raising a question about statutory interpretation of a differential pay statute, Adams filed his reply in support of his petition. Adams argues that “government’s current reading [of 10 U.S.C. § 12301(d)] cannot be squared with its previous position.” According to Adams, the Federal Circuit applies “a novel interpretation of ‘during’ that has never before asserted in this litigation and that no English speaker would recognize.” Moreover, Adams contends, both the veterans canon and the rule of lenity support his interpretation of the statute.

Amicus Briefs

As we previously reported, in American Axle & Manufacturing, Inc. v. Neapco Holdings LLC, the government submitted its long-awaited amicus brief in response to the Court’s order from May, 2021 inviting the Solicitor General to express the views of the United States. In this case, the petitioner asked the Court to review the following 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 art at the time of the patent?”

The government’s brief presents the view of the United States that the petition should be granted with respect to the first question. According to the government, the Federal Circuit’s decision “reflects substantial uncertainty about the proper application of Section 101.” The government argues that inventions like the one at issue here, an invention related to driveshafts, have “long been viewed as paradigmatic examples of the ‘arts’ or ‘processes’ that may receive patent protection if other statutory criteria are satisfied.” Thus, the government contends, the Federal Circuit “erred in reading this Court’s precedents to dictate a contrary conclusion.”

In Apple Inc. v. Qualcomm Inc., the government also filed an amicus brief, this one in response to the Court’s February order inviting the Solicitor General to express the views of the United States. In this case, the petitioner asked the following question:

  • “Whether a licensee has Article III standing to challenge the validity of a patent covered by a license agreement that covers multiple patents.”

The government’s brief presents the view of the United States that the petition should be denied. The government argues that the Federal Circuit “correctly held that [Apple] had not established Article III standing to challenge the two patents at issue.” According to the government, Apple “has not shown that a favorable decision in this case would redress any injury to it—or, indeed, would have any real-world effect on petitioner at all.” Thus, the government concluded that, “[b]ecause the court of appeals correctly applied settled principles of Article III standing to the particular facts of this case, further review is not warranted.”