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, there is no new activity to report. With respect to petition cases, three new petitions were filed with the Court; a reply brief was filed in a case raising questions related to patent eligibility; and four supplemental briefs were submitted in three patent cases. 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

Three new petitions were filed with the Court.

In Hyatt v. United States Patent and Trademark Office, the petitioner asked the Court to consider two questions:

  1. “Whether the ordinary summary judgment standard of Rule 56 applies to review of agency action, as held by the First, Fifth, Ninth, and District of Columbia Circuits.”
  2. “Whether the mandamus standard of Norton v. S. Utah Wilderness Alliance, 542 U.S. 55 (2004), applies to claims seeking to set aside agency action under 5 U.S.C. § 706(2).”

In CustomPlay, LLC v., Inc., the petitioner asked the Court to answer the following questions:

  1. “Whether the Patent and Trademark Office (PTO) violated the statutory text and legislative intent of the America Invents Act (AIA) by delegating the PTO Director’s responsibility to determine whether to institute inter partes review (IPR) of issued patents to the Patent Trial and Appeal Board (PTAB), which is the entity that the AIA directs to render final decisions in instituted proceedings.”
  2. “Whether the PTO’s administration of IPR proceedings violates a patent owner’s constitutional right to due process by having the same decisionmaker, the PTAB, render both the institution decision and the final decision.”

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

  1. “What court, tribunal, and or investigative agency ensures that information with redacted infor­mation when presented as evidence is valid, legal, and not used for misinformation?”
  2. “Is ‘such that a reasonable person could con­clude’ as used in whistleblowing retaliation cases and jurisprudence, valid, applicable, given signifi­cant consideration, and fair, when applied to subcultures – as in military healthcare is a subculture within the military, and military is a subculture of U.S. population. Subcultures often have unique highly specialized attributes, purpose and dynamics – including communications and where the general population “reasonable person” may be de­void of basic information and or familiarity of the subculture that a ‘reasonable person’ of a subcul­ture customarily possesses.”
  3. ”In retaliation cases where a common individual is involved, and or, several individuals with common interests and motivation are involved, in multiple situations suggestive of retaliation; why is ‘merger of factors’ that constitutes a nexus not given consideration?”
  4. ”End justifies the means, and vice versa. Are mili­tary federal agencies immune to legal liabilities for reporting and or submitting untruthful or mis­leading information when action is backed by com­mander’s discretionary authority?”
  5. “Can military commanders with discretionary au­thority change definitions and or interpretation of congressional legislative rules or mandates such as the HIPAA privacy rule exemptions?”
  6. “What has precedence HIPAA privacy rule or Pa­triot Act?”
  7. “With concurrent and or competing active military missions, who has priority in the application of Army Regulation (AR) 40-66 (‘ . . . carrying out any other activity necessary to the proper execu­tion of the Army’s mission’). Military health ser­vices commander (dual health care missioned) or warfighter commander?”
  8. ”Can military healthcare commanders with their discretionary authority apply HIPAA privacy rule to withhold and or be passive with sharing signif­icant or relevant soldier protected health infor­mation that could be critical for warfighter commanders optimum command and control and to execute national defense and or homeland secu­rity missions?”


In Spireon, Inc. v. Procon Analytics, LLC, a patent eligibility case, Spireon submitted its reply in support of its petition. Spireon argues that its “patent should not be finally judged under the Federal Circuit’s current, ‘substantially uncertain’ application of the Mayo/Alice framework.” Rather, Spireon contends, “[i]f the Court grants certiorari in American Axle, the Court should hold this petition and then grant, vacate, and remand the case following a merits decision in American Axle.”

Supplemental Briefs

In American Axle & Manufacturing, Inc. v. Neapco Holdings LLC, Neapco submitted a supplemental brief in response to the Solicitor General’s amicus brief recommending that American Axle’s petition be granted. According to Neapco, the case “primarily involves applying this Court’s uncontroversial decision in O’Reilly v. Morse . . . and not any controversial aspect of [Alice or Mayo].” Neapco argues that overturning Mayo, as the government’s brief suggests, “is bad advice, as this Court’s strong commitment to statutory stare decisis shows.” Moreover, Neapco contends, ”[g]ranting [the petition] means confronting yet another case where the Section 101 question is poorly isolated from other overlapping Patent Act considerations—a recipe for multiplying the exact confusion the government bemoans.”

In Ameranth, Inc. v. Olo, Inc., another patent eligibility case, both Ameranth and Olo submitted supplemental briefs in response to the Solicitor General’s amicus brief in American Axle. In Ameranth’s brief, Ameranth, the petitioner, argues that, “[g]iven the extensive overlap of certiorari factors in Ameranth and American Axle, it would advance efficiency, fairness and uniformity of decisions for both petitions to be considered together.” According to Ameranth, the Solicitor General’s amicus brief in American Axle “bears directly on and illuminates the questions presented in Ameranth’s petition.” Moreover, Ameranth argues, “[i]t strengthens petitioner’s arguments favoring review.” In Olo’s brief in opposition, however, Olo argues that “[t]he brief of the Solicitor General in [American Axle] only further confirms why the petition should be denied in the present case.” According to Olo, “[t]he Solicitor General advocates for consideration of a narrowly-focused question that is specific to the driveshaft manufacturing patent at issue in American Axle.” Meanwhile, Olo contends, “the present case involves a routine, unanimous summary disposition under well-settled precedent that is not challenged in American Axle.”

In Apple Inc. v. Qualcomm Inc., another patent case, Apple submitted a supplemental brief in light of the government’s amicus brief recommending that Apple’s petition be denied. In Apple’s brief, it argues that “[t]he government’s recommendation that the Court . . . deny certiorari is based on a regrettable disregard of this Court’s governing precedent.” According to Apple, the Court’s precedent “show[s] that Apple has standing to challenge the validity of patents that— but for the parties’ license agreement—Qualcomm would unquestionably accuse Apple of infringing.” Moreover, Apple argues, “the government’s brief demonstrates the sharp disagreement over an important issue with broad real-world impact.” Accordingly, Apple contends, “[t]he Court should grant certiorari and resolve it.”