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, no new petitions were filed with the Court, but the government waived its right to respond in a pro se case; the Solicitor General filed a brief in opposition in two patent cases and another brief in opposition was filed by a private party in one of the same cases; two amicus brief were filed in another patent case, four amicus briefs were filed in a veterans case, and one amicus brief was filed in another patent case; and the Court denied certiorari in a patent case. Here are the details. 

Granted Cases

There is no new activity to report.

Petition Cases

New Petitions

There is no new activity to report.

Waiver of Right to Respond

The government waived its right to respond in Conteh v. Department of Commerce, a pro se case.

Briefs in Opposition

The Solicitor General filed a brief in opposition in two patent cases: Fall Line Patents, LLC v. Unified Patents, LLC, and  Arthrex, Inc. v. Smith & Nephew, Inc.. In both cases, the petitioners presented the following question for review:

  • “Whether the Commissioner for Patents’ exercise of the Director’s authority pursuant to an internal agency delegation violated the Federal Vacancies Reform Act.”

In its brief in opposition to the petition, the government supports the Federal Circuit’s holding. It argues “the USPTO acted in accordance with the FVRA’s text and with longstanding Executive Branch practice.” According to the government, “[n]othing in the FVRA . . . purports to prohibit a subordinate official’s exercise of validly delegated authorities.” It argues that, under petitioners’ “capacious reading, vacancies would cripple the operation of the federal government in the very way that Congress, both in statutory text and by practice, has understandably chosen to avoid.” It also contends that the petitioners “do not identify any substantial basis for further review.”

Smith & Nephew also filed its brief in opposition. It argues “there is no conflict of appellate authority regarding the scope of the FVRA.” Accordingly, it contends, “the decision below does not present the constitutional crisis petitioner hypothesizes.” Smith & Nephew maintains, moreover, that this case presents a poor vehicle for addressing the applicability of the FVRA because, “even if petitioner could obtain a remand back to the Director, all it would get is a formal denial of its request for review.” It argues, anyway, that the Federal Circuit’s decision is correct because “[t]he Patent Act expressly permits the Director to delegate her authority to inferior officers, and the authority to review decisions of the PTAB falls within the scope of such delegated authority.” 

Amicus Briefs

Two amicus briefs were filed in Thaler v. Vidal, a patent case concerning whether the term “inventor” is restricted to human beings. 

  • Brooklyn Law Incubater & Policy (BLIP) Clinic and Professor Dr. Peter Georg Picht filed an amicus brief in support of the petitioner. The group argues the Federal Circuit’s decision “negatively impacts the research and development of advanced generative AI and places companies and startups in a difficult and uncertain situation.” They contend that “[j]udicial clarification is needed regarding the designation of AI as inventor.” The group argues “[t]he implementation of AI in the inventive process, or even in autonomous invention, could potentially impact the PHOSITA standard.”
  • Chicago Patent Attorneys filed an amicus brief in support of the petitioner. The group argues that the limitation of an “individual” to a “natural person,” as held by the Federal Circuit, “directly contravenes the function of the Patent Act.” They maintain “[a]cknowledging that an AI could be an inventor would encourage innovation and discourage monopolies by promoting public disclosure of inventions produced by AI.” It urges the Court to “take the minimal, logical, and publicly-beneficial approach by holding that an AI can be designated as an inventor on a patent application and any patents that grant therefrom.” 

Four amicus briefs were filed in Rudisill v. McDonough, a veterans case raising a question regarding educational benefits. 

  • The state of Virginia, 32 other states, and the District of Columbia filed an amicus brief in support of the petitioner. They argue the Federal Circuit “erroneously limited Petitioner (and veterans like him) to 36 months of education benefits, rather than the 48 aggregate months.” They contend the Federal Circuit’s decision “risks confounding and confusing the States’ efforts to help veterans seek federal benefits under the G.I. Bill and to supplement those federal benefits.” The group also argues that “the Federal Circuit wrongly refused to apply the pro-veteran canon.” 
  • Seven Veterans also filed an amicus brief in support of the petitioner. They argue that the Federal Circuit’s decision, “by wrongly interpreting 38 U.S.C. § 3327(d), has cut [veteran’s education benefits] down to 36 months.” According to the group, “these veterans (and their children) each stand to lose tens of thousands of dollars in education benefits.”
  • The Edison Electric Institute (EEI) filed an amicus brief in support of the petitioner. It argues “the decision below misconstrued the Post-9/11 GI Bill.” It contend “[t]he relevant provisions don’t require veterans to exchange unused Montgomery benefits for Post-9/11 benefits; they merely provide the option.” EEI argues “the decision below not only harms the veterans themselves, but ultimately the energy industry and the United States economy more broadly.”
  • National Veterans Legal Services Program, Service Women’s Action Network, and Veterans Education Success also filed an amicus brief in support of the petitioner. These groups argue “Congress has created overlapping education benefits and consistently permitted veterans to use any benefits for which they qualified, subject to a 48-month maximum.” And, they say, “[n]othing in the Post-9/11 GI Bill suggests Congress wanted to depart from that approach.” They contend “the lack of such clarity means that the issue must be resolved in petitioner’s favor.”

One amicus brief was filed in Avery Dennison Corp. v. ADASA Inc., a patent case concerning the eligibility of RFID tags for patenting. 

  • Impinj, Inc. filed an amicus brief in support of the petitioner. It argues the Federal Circuit has failed to establish “a stable and predictable body of law governing the patent-eligibility of computer-implemented inventions.” It contends “[t]his uncertainty threatens to undermine the incentives to innovate and to impede the widespread adoption of the underlying technology, thereby artificially limiting the vast potential of the Internet of Things.” It urges the Court to consider how “this case presents the Court with an opportunity to consider a category of patents that are frequently challenged under Section 101 (claims directed to methods and systems of organizing and processing information) in a frequently recurring context (computer software and data management).”


The Supreme Court denied certiorari in Novartis Pharmaceuticals Corporation v. HEC Pharm Co., a patent case raising questions concerning the formation of appellate panels and the written description requirement.