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 petitions, two new petitions were filed with the Court in a takings case and a pro se case; the government waived its right to respond in a pro se case and a veterans case; and three amicus briefs were filed in a takings case and a patent case. Here are the details.
There is no new activity to report.
Two new petitions were filed with the Court.
- “[W]hether the Government’s uncompensated appropriation of these private companies’ earnings and net worth through the Net Worth Sweep effects a taking under the Fifth Amendment.”
Waivers of Right to Respond
Amicus briefs were filed in three cases.
Two amicus briefs were filed in McCutchen v. United States, a case raising a question about the Fifth Amendment.
- Maryland Shall Issue, Inc. filed an amicus brief in support of the petitioners. According to MSI, “[f]our circuits are in a state of conflict concerning the appropriate analysis for governmental bans on the possession of personal property that was legally acquired and possessed prior to the enactment of the regulation in question.” Accordingly, MSI urges that “[t]he [Supreme] Court’s intervention is needed to clarify the correct standard for adjudicating possession bans.”
- The State of Montana along with sixteen other states jointly filed an amicus brief in support of the petitioners. According to the States, the Bureau of Alcohol, Tobacco, and Firearms’s “2018 regulation (‘ATF Rule’) . . . changes the definition of ‘machinegun’ and criminalizes previously lawful behavior.” The States explain how the Federal Circuit applied the ATF Rule to deny the petitioners’ claim for “compensation for the taking of previously lawful property under the Fifth Amendment.” The States urge that this “ruling profoundly diminishes constitutional protections of lawfully acquired property.”
US Inventor and Eagle Forum Education & Legal Defense Fund jointly submitted an amicus brief in support of the petition in Tropp v. Travel Sentry, Inc., a case raising a question about patent eligibility. The organizations argue that “[t]he application by lower courts of the Alice test has departed far from the text of 35 U.S.C. § 101, pursuant to a judicially created test about abstractness that is mostly in the eye of the beholder.” Accordingly, the organizations urge, “[t]he Petition offers a straightforward opportunity for this Court to end the confusion wrought by its Alice test, and to restore broad patent eligibility that would spur much-needed innovation in the future.”
A group of professors of law, economics, business, and medicine jointly submitted an amicus brief in support of the petition in Teva Pharmaceuticals USA, Inc. v. GlaxoSmithKline LLC, a patent case raising a question about so-called skinny labelling. According to the professors, “[t]he Federal Circuit’s construction of inducement of patent infringement creates two serious conflicts with the federal statute on generic drug entry, in a way that is likely to be exploited widely in years to come to the detriment of United States health care, competition, and the federal government.” The professors urge that “[c]ertiorari is required to resolve the unnecessary statutory conflicts that the Federal Circuit has created, conflicts with major consequences for the American public.”