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, the Court set a date for oral argument in Arellano v. McDonough, a veterans case raising questions about equitable tolling of a veterans benefits filing deadline. With respect to petition cases, two new petitions were filed in patent cases; a waiver of right to respond was filed in a veterans case; three amicus briefs were filed in another veterans case; and the Court denied two petitions, one in a patent case and one in a federal employment case. Here are the details.

Granted Cases

The Supreme Court set the date for oral argument in Arellano v. McDonough for Tuesday, October 4. This case seeks clarification from the Supreme Court on equitable tolling of a one-year filing deadline for retroactive veterans disability benefits.

Petition Cases

New Petitions

Two new petitions were filed with the Court.

In Biogen International GmbH v. Mylan Pharmaceuticals Inc., the petitioner asked the Court to consider the following question:

  • “Is 35 U.S.C. § 112’s requirement that a patent specification ‘contain a written description of the invention’ met when the specification describes the invention, or must the specification also disclose data that demonstrates the claimed invention is ‘effective’ and emphasize the claimed invention by singling it out and describing it more than once?”

In Juno Therapeutics, Inc. v. Kite Pharma, Inc., the petitioner asked the Court to consider the following question:

  • “Is the adequacy of the ‘written description of the invention’ to be measured by the statutory standard of ‘in such full, clear, concise, and exact terms as to enable any person skilled in the art to make and use the same,’ or is it to be evaluated under the Federal Circuit’s test, which demands that the ‘written description of the invention’ demonstrate the inventor’s ‘possession’ of ‘the full scope of the claimed invention,’ including all ‘known and unknown’ variations of each component?”

Waiver of Right to Respond

The government waived its right to respond in Bonner v. McDonough, a veterans case raising questions about claim and issue preclusion.

Amicus Briefs

Three amicus briefs were filed in Lynch v. McDonough, a case concerning the standard of proof used to deny veterans disability claims.

  • Military-Veterans Advocacy Inc. submitted an amicus brief in support of Lynch, the petitioner. According to MVA, “[w]hen the evidence on any issue material to a veteran’s claim for benefits is mixed, ‘[b]y tradition and by statute, the benefit of the doubt belongs to the veteran.'” The brief argues, however, that, “VA and the Veterans Court are . . . denying veterans the benefit of the doubt in mixed-evidence cases based on nothing more than a bare recitation that a preponderance of evidence is against the veteran.” MVA urges that this “practice is at odds with the statute, at odds with the intended non-adversarial nature of the veterans’ benefits system, and at odds with the longstanding principle that those who ‘have borne the battle’ on our nation’s behalf deserve the benefit of the doubt from their government.”
  • The National Law School Veterans Clinic Consortium also submitted an amicus brief in support of Lynch. Its brief argues that “[t]he inconsistency of the definition of ‘approximate balance’ within the VA adjudicatory system places veterans who are seeking disability benefits at a distinct disadvantage in a system that was designed instead to provide them with the ‘benefit of the doubt.'” Moreover, NLSVCC maintains, “[t]his issue is significant to veterans, the proper functioning of the VA system, and society in general.”
  • The Texas A&M University School of Law Family and Veterans Advocacy Clinic also submitted an amicus brief in support of the petition. The Clinic argues that the “Federal Circuit, in the instant case, coined what can only be described as a game of semantics when it repealed the preponderance of evidence standard and replaced it with the ‘persuasive evidence’ rule.” According to the Clinic, “[t]he preponderance of the evidence standard, or the newly minted persuasion of evidence rule, creates an adversarial system that goes against the clearly expressed congressional intent and the plain language of the statute.” The Clinic argues the petition should be granted because “VA, the bench, and the bar need guidance on the proper standard of evidence needed to deny a veteran’s claim.”


The Supreme Court denied certiorari in the following cases: