Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. Last Friday, the Court granted the petition for certiorari in Amgen Inc. v. Sanofi, Aventisub LLC, a patent case regarding the enablement requirement. In addition, one new petition was filed with the Court in a pro se case; the government waived its right to respond in two other pro se cases; and the Court denied two petitions: one in a veterans case and one in a patent case. Notably, Justice Gorsuch filed an opinion dissenting from the decision to deny review in the veterans case. Here are the details.
Granted Cases
As we previously reported, the Supreme Court granted the petition for certiorari in Amgen Inc. v. Sanofi, Aventisub LLC, a patent case raising questions related to the enablement requirement. The Court, however, granted review only for the second question presented. That question asks “[w]hether enablement is governed by the statutory requirement that the specification teach those skilled in the art to ‘make and use’ the claimed invention, 35 U.S.C. § 112, or whether it must instead enable those skilled in the art ‘to reach the full scope of claimed embodiments’ without undue experimentation—i.e., to cumulatively identify and make all or nearly all embodiments of the invention without substantial ‘time and effort.’” Notably, the Supreme Court granted review of this question despite the contrary view of the Solicitor General.
Petition Cases
New Petition
One new petition was filed by a pro se petitioner in Flores-Vazquez v. McDonough.
Waivers of Right to Respond
The government waived its right to respond in Forrest v. United States, a pro se case.
The government also waived its right to respond in Carter v. Department of Defense, another pro se case.
Denials
The Supreme Court denied certiorari in two cases:
- Buffington v. McDonough (veterans)
- Juno Therapeutics, Inc. v. Kite Pharma, Inc. (patent law’s written description requirement)
Notably, Justice Gorsuch filed an opinion dissenting from the denial in Buffington v. McDonough. The petition presented a challenge to the Chevron doctrine and its use in veterans’ cases. It presented the following questions for review:
- “Whether the Chevron doctrine permits courts to defer to VA’s construction of a statute designed to benefit veterans, without first considering the pro-veteran canon of construction.”
- “Whether Chevron should be overruled.”
According to Justice Gorsuch, reading Chevron broadly “pose[s] a serious threat to some of [the] most fundamental commitments as judges and courts.” He contends that “[the courts] place a finger on the scales of justice in favor of the most powerful of litigants, the federal government, and against everyone else.” He urges the Court to “acknowledge forthrightly that Chevron did not undo, and could not have undone, the judicial duty to provide an independent judgment of the law’s meaning in the cases that come before the Nation’s courts.”