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 petitions, one new petition was filed in a pro se case; the government waived its right to respond in another pro se case; a brief in opposition was filed in a case concerning judicial disqualification; three amicus briefs were filed in a patent case; and the Court denied two petitions, one in a veterans case and another in a pro se case. Here are the details.

Granted Cases

There is no new activity to report. 

Petition Cases

New Petitions

One new petition was filed with the court in Holmes-Smith v. Merit Systems Protection Board, a pro se case. 

Waiver of Right to Respond

The government waived its right to respond in McGhee v. United States, another pro se case.

Brief in Opposition

Cisco Systems filed a brief in opposition to the petition 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.” 

Now, in response, Cisco Systems argues the petition seeks review of issues that are “splitless, fact-bound, extremely rare, unlikely to recur, not of national importance, interlocutory, and not squarely presented.” Alternatively, it argues, “even were the Court contemplating engaging in splitless and factbound error correction, there would be nothing to correct.” Cisco Systems maintains that “Section 455(f)’s plain text makes clear that placing stock in a purported ‘blind trust’ does not amount to ‘divest[ing]’ it.”  Divestment, according to Cisco Systems, “requires that the judge (or his or her family member) be deprived or dispossessed of ‘ownership of’ the disqualifying interest.” Here, it argues, the judge’s wife “still had ownership” of the stock and thus disqualification was required. It also maintains the Federal Circuit’s application of the Liljeberg factors (offering guidance on how courts should make a “harmless error” determination) was “correct in light of the highly unusual facts of this case” and does not warrant further review.  

Amicus Brief

Three amicus briefs were filed in Jump Rope Systems, LLC v. Coulter Ventures, LLC, a patent case raising a question related to inter partes review estoppel. The petitioner asked the Court to review the following question: “Whether, as a matter of federal patent law, a determination of unpatentability by the Patent Trial and Appeal Board in an inter partes review proceeding, affirmed by the Federal Circuit, has a collateral estoppel effect on patent validity in a patent infringement lawsuit in federal district court.”

  • Eagle Forum Education & Legal Defense Fund filed an amicus brief in support of the petitioner. According to Eagle Forum, “[t]his case presents a separation-of-powers violation that further erodes patent rights, and thereby decreases the incentives for innovation on which the United States economy depends for continued prosperity.” It explains that the Federal Circuit’s decision allows a patent infringer “to circumvent the higher [burden of proof] in court by exploiting an administrative action in order to apply the administrative result retroactively in frustration of the Article III adjudication.” Eagle Fund urges that “[t]he judiciary, not Congress, has caused this erroneous, harmful result, and the Petition should be granted to correct it on this matter of substantial national importance.” 
  • Fair Inventing Fund also filed an amicus brief in support of the petitioner. It maintains that “[c]onfidence degrades, and incentives to enter the patent system diminish, when an appeals court takes away via collateral estoppel an aggrieved small innovator’s day in federal district court.” It explains that, “[b]ecause of the capital required to enforce a patent, underrepresented innovator groups bear the brunt of this lopsided application of collateral estoppel.”
  • DivX LLC, a producer of video codec products, filed an amicus brief in support of neither party. It urges the Court to grant the petition to “provide needed guidance on common-law preclusion in patent cases in which different tribunals, applying different standards, address the same patent rights.” It maintains that “[t]he public interest is served when these rules are logical, clear, and predictable, so that parties in patent litigation can know their rights in advance and so unnecessary and harassing litigation can be prevented.” Moreover, it explains, collateral estoppel rules “should not have ill-advised departures from general principles based on ‘patents-only’ exceptions, like the exception at issue here.” 


The Supreme Court denied certiorari in the following cases: