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 Supreme Court heard arguments last week in Arellano v. McDonough, a veterans case. With respect to petitions, one new petition was filed with the Court in a pro se case; the California Institute of Technology waived its right to respond in a patent case; the government filed its brief in opposition in a takings case; three amicus brief were filed, two in a patent case and one in a case concerning judicial disqualification; and, finally, the Court denied a petition in a challenge to a decision of the Merit Systems Protection Board. Here are the details.

Granted Cases

Last week, the Supreme Court heard arguments in Arellano v. McDonough, a veterans case. The argument recap is posted here.

Petition Cases

New Petition

In Forrest v. United States, a pro se petitioner asked the Court to review three questions.

Waiver of Right to Respond

The California Institute of Technology waived its right to respond in Apple Inc. v. California Institute of Technology, a patent case raising a question related to inter partes review estoppel.

Brief in Opposition

The government filed its brief in opposition in McCutchen v. United States, a takings case. The petitioners presented the following question to the Court: 

  • “For purposes of the Fifth Amendment’s Taking Clause, does a delegation of general legislative rule-making authority to an agency constitute an inherent restraint on title to any personal property that could be subsequently subjected to a prospective legislative rule, rendering the physical taking of the property non-redressable?”

The petitioners are former owners of bump stock devices who contend that a taking of their property occurred when the Bureau of Alcohol, Tobacco and Firearms issued a final rule interpreting the statutory term “machinegun” to encompass bump stock devices.  

In its brief, the government argues that the pre-existing statutory limitation prohibiting the possession of machineguns was “a valid prior limitation on any property rights petitioners may have had in their bump stocks, which the government could enforce or make more explicit without effecting a taking.” The government, moreover, maintains that, “[b]ecause the final rule sets forth the best interpretation of the statutory definition of ‘machinegun,’ federal law has always limited petitioners’ purported state law property interests in bump stocks.” Alternatively, the government argues, it “may prohibit the possession of property ‘injurious to the health or safety of the community’ . . . without effecting a taking.” According to the government, the Court of Federal Claims “correctly identified ATF’s final rule” as a “public-safety measure that does not implicate the Takings Clause.” 

Amicus Briefs

Amicus briefs were filed in two cases.

First, two amicus brief were filed in Apple Inc. v. California Institute of Technology, a patent case raising a question related to inter partes review estoppel. The petition presented the following question: “Whether the Federal Circuit erroneously extended IPR estoppel under 35 U.S.C. § 315(e)(2) to all grounds that reasonably could have been raised in the petition filed before an inter partes review is instituted, even though the text of the statute applies estoppel only to grounds that ‘reasonably could have [been] raised during that inter partes review.’”

  • A group of patent law professors filed an amicus brief in support of the petitioners. According to the professors, “[t]he statutory interpretation adopted by the Federal Circuit in the opinion below is inconsistent with the statutory text and the canon of consistent usage.” They urge the court to hold that estoppel “extends only to grounds that a party ‘raised or reasonably could have raised during that inter partes review,’ with ‘during that inter partes review’ meaning the time period between institution and final decision.” The professors explain that a “broad reading of the estoppel provision” both “raises questions of procedural fairness” and “complicates future proceedings by requiring a determination of what prior art a petitioner should have known about at the time of its petition.”
  • United Patents also filed an amicus brief in support of petitioners. United Patents maintains that “[t]he patent system requires a clear decision on the scope of IPR [inter partes review] estoppel.” According to United Patents, “[t]his is a matter of pure statutory construction, fairly presented by the present case.” Although United Patents “takes no position at this stage of the proceeding on the correct interpretation,” it maintains “it is better to have a rule firmly established, regardless of what the rule is, than to have dueling interpretations that linger in the law.” It urges that “[o]nly this Court can provide that surety.”

Second, Eagle Forum Education & Legal Defense Fund submitted an amicus brief in support of the petitioner in Centripetal Networks, Inc. v. Cisco Systems, Inc, a case raising a question about judicial disqualification. According to Eagle Forum ELDF, the Federal Circuit “wrongly precluded federal judges from using blind trusts to avoid a wasteful recusal after a lengthy trial.” It urges the Court to “recognize here that the use of a blind trust fits comfortably within the framework of the congressional statute promoting judicial ethics . . . and is an acceptable alternative to a forced sale of stock that itself would create an appearance of impropriety.” 


The Supreme Court denied certiorari in Manivannan v. Department of Energy, a Merit Systems Protection Board case.