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 with the Court in a patent case, and the government filed a brief in opposition in a veterans case. Here are the details. 

Granted Cases

There is no new activity to report.

Petition Cases

New Petition

One new petition was filed with the Court in Novartis Pharmaceuticals Corporation v. HEC Pharm Co., Ltd., a patent case. The petitioner presented the following questions for review:

  1. “Whether 28 U.S.C. § 46 and principles of sound judicial administration preclude a court of appeals from adding a new judge to form a new panel and redecide a case after an original three-judge panel has already decided the case and entered its judgment.”
  2. “Whether 35 U.S.C. § 112 should be interpreted consistent with its plain text as requiring that a patent specification contain a ‘written description of the invention’ in a form that need only be understandable to ‘any person skilled in the art,’ or whether the court of appeals properly read in a heightened requirement that allows it to deem the specification inadequate on de novo review and displaces the perspective of a person skilled in the art.”

Brief in Opposition

The government filed its brief in opposition in Veteran Warriors, Inc. v. McDonough, a veterans case. The petitioner presented the following questions for review:

  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.”

In its brief in opposition to the petition, the government argues that, as to the first question presented, the Pro-Veteran Canon “does not apply when the agency charged with administering an Act of Congress has formally adopted its own interpretation of ambiguous statutory text.” The government contends the Pro-Veteran canon is “not properly applied to displace a reasonable interpretation formally adopted by the agency that Congress has charged with filling gaps in a statutory scheme.” According to the government, “VA’s ability to implement the caregiver-assistance program that Congress mandated would be seriously compromised if . . . the agency were required to give every disputed snippet of statutory language the plausible reading that is most favorable to veterans.” As to the second question presented, the government argues the petitioners “offer no persuasive ‘special justification’ for replacing Chevron, let alone the type of ‘particularly special justification’ that would be required to overturn such a deeply ingrained precedent.” It highlights how “the Federal Circuit and this Court have invoked and applied both the veterans canon and Chevron for decades.”