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 since our last update. With respect to petition cases, six waivers of right to respond were submitted; two briefs in opposition were filed, one in an Equal Access to Justice Act case and one in a patent case; and the Court denied certiorari in three cases, two in patent cases and one in an employment case. Here are the details.

Granted Cases

There is no new activity to report.

Petition Cases

Waivers of Right to Respond

Six waivers of right to respond were filed in various cases:

Briefs in Opposition

The government filed a brief in opposition to the petition in Athey v. United States, which concerns a provision of the Equal Access to Justice Act (EAJA) related to the liability of the United States for costs and fees. The government argues that the Federal Circuit “correctly held that petitioners are not entitled to attorney’s fees under [28 U.S.C §] 2412(b) because the common-law ‘common fund’ doctrine does not authorize fee-shifting between the plaintiffs who have obtained a common fund in litigation and the defendant whose liability created the fund.” The government further explains that “petitioners seek an award of attorney’s fees not from the plaintiff class that shared in the common fund that petitioners obtained, or from the fund itself, but rather from the United States as the defendant in this case.” According to the government, “[t]he common-fund doctrine provides no support for such a request.” Consequently, the government urges, “[t]he petition for a writ of certiorari should be denied.”

Polar Electro Oy filed a brief in opposition to the petition in Interactive Wearables, LLC v. Polar Electro Oy, a case concerning patent eligibility. According to Polar Electro Oy, “[t]he Petition seeks nothing more than for this Court to reassess an alleged misapplication of a properly stated rule of law,” an improper ground for certiorari. In addition, Polar Electro Oy notes that, “[d]espite mimicking the American Axle questions presented, the instant Petition differs both in kind and in posture.” Polar Electro Oy contends that “American Axle relates to a patent supposedly directed to a natural law; the instant Petition relates to patents directed to an abstract idea—namely obtaining information about content while viewing that content.” Moreover, Polar Electro Oy urges, while “[t]he Federal Circuit has spent countless hours and pages debating American Axle; the Federal Circuit summarily dispelled the instant case, including Petitioner’s rehearing requests.” Accordingly, Polar Electro Oy argues, “[t]he Petition should be denied.”


The Supreme Court denied certiorari in the following cases: