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 petitions, two new petitions were filed with the Court in a veterans case and a pro se case; the Court invited the Solicitor General to file a brief expressing the views of the United States in a case raising a question concerning patent eligibility; and three amicus briefs were filed in support of a petition raising a question related to judicial disqualification. Here are the details.

Granted Cases

There is no new activity to report since our last update. We are waiting for the Supreme Court to issue its decision in Arellano v. McDonough, a veterans case.

Petition Cases

New Petitions

Two new petitions were filed with the Court.

In Veteran Warriors, Inc. v. McDonough, the petitioner asked the Court to review the following questions:

  1. “Whether courts can defer to the construction of a statute by the Department of Veterans Affairs without first considering whether the statute permits a pro-veteran construction pursuant to the Pro-Veteran Canon.”
  2. “Whether Chevron should be clarified or replaced to protect canons of construction, including the Pro-Veteran Canon, from becoming a nullity.”

Another petition was filed in Carter v. Department of Defense by a pro se petitioner following the Federal Circuit’s affirmance of her appeal from the Merit Systems Protection Board.

Call for the Views of the Solicitor General

The Court invited the Solicitor General to file a brief on behalf of the United States in Tropp v. Travel Sentry, Inc., a case raising a question concerning patent eligibility. 

Amicus Briefs

Three amicus briefs were filed in Centripetal Networks, Inc. v. Cisco Systems, Inc., a case concerning judicial disqualification. The petition presented the following question: “Whether placing stock in a blind trust satisfies §455(f)[indicating when judicial disqualification is not required]—and, if not, whether placing trivial amounts of stock in a blind trust, in lieu of selling it outright, constitutes harmless error.” 

  • Fair Inventing Fund filed an amicus brief in support of the petitioner. Fair Inventing agrees with Centripetal that the Federal Circuit’s decision will “chill the enforcement of valid patents by small inventors,” burden startups, and lead startup inventors to “conclude that the deck is stacked.” It explains that “burdens such as these rest disproportionately on the shoulders of previously underrepresented innovator groups.” Fair Inventing maintains that, “[i]f the deck is stacked against a Petitioner whose evidence led to the largest patent damages judgment in our nation’s history, it is even more so against previously underrepresented innovators.” 
  • The Committee for Justice and Conservatives for Property Rights jointly filed an amicus brief in support of the petitioner. They maintain that the Federal Circuit’s decision will “undermine confidence in the judicial process and importantly will harm the innovation community, particularly the small to mid-sized entities.” Moreover, they contend, “[v]acating an otherwise valid decision of patent infringement will impose significant costs on not only Centripetal Networks but also other emerging innovators who must battle companies—many with nearly limitless resources—simply to be compensated for the unauthorized use of their valuable inventions.” 
  • Alliance of U.S. Startups & Inventors for Jobs (USIJ) also submitted an amicus brief in support of the petitioner. According to USIJ, not only is the Federal Circuit’s decision “grossly unfair and utterly disproportionate,” but it is also “inconsistent with the underlying rationale for adding Subsection (f) to 28 U.S.C. §455 in the first place, which was to preserve the value of judicial resources upon the discovery of what otherwise might be a conflict.” From the standpoint of the inventors, it maintains that the decision “undermine[s] the perception of patent reliability.” Moreover, USIJ contends, “if allowed to stand, [the Federal Court’s decision] will simply add to the inherent risk already perceived by many entrepreneurs and investors and there will no doubt be some investments that never get made as a result.”