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, the Supreme Court issued its opinion yesterday in Amgen Inc. v. Sanofi, Aventisub LLC, a patent case addressing the enablement requirement. With respect to petitions, five new petitions were filed, one in a trade case, one in an employment case, and three in pro se cases. Three briefs in opposition were filed, two in veterans cases and one in a patent case. Two waivers of the right to respond were filed in the same patent case. And, finally, four petitions were denied, three in patent cases and in one pro se case. Here are the details.

Granted Cases

The Supreme Court issued its opinion in Amgen Inc. v. Sanofi, Aventisub LLC, a patent case addressing the enablement requirement. In a unanimous decision, the Court affirmed the Federal Circuit’s ruling, holding that a “specification must enable the full scope of the invention as defined by its claims.” Check out our opinion summary for more details.

Petition Cases

New petitions were filed in five cases.

In Acquisition 362 v. United States, Acquisition 362 asked the Court to review the following three questions:

  1. “Whether the Federal Circuit Court of Appeals’ decision that Petitioner’s protests concerning rate and refund determinations were untimely and the Court of International Trade lacked subject matter jurisdiction pursuant to 28 U.S.C. § 1581(a) essentially eliminates one of the statutory means by which importers can file protests under 19 U.S.C. § 1514(c)(3)(B) and 19 C.F.R. § 174.12(e)(2)?”
  2. “Whether the Federal Circuit Court of Appeals erred in concluding that Petitioner could have invoked jurisdiction under 28 U.S.C. § 1581(a) by submitting timely protests of the liquidation of its entries even though Petitioner lacked the grounds to file protests at an earlier time?”
  3. “Whether the Federal Circuit Court of Appeals erred in affirming the Court of International Trade’s decision dismissing Petitioner’s action when newly discovered evidence demonstrated that, if subject matter jurisdiction did not lie under 28 U.S.C. § 1581(a), then there were clearly manifestly inadequate remedies available, thus establishing subject matter jurisdiction under 28 U.S.C. § 1581(i)?”

In Adams v. United States, Adams asked the Court to review the following question:

  • “Under the regulation requiring hazardous duty pay for federal employees who work ‘with or in close proximity to’ virulent biologicals, are federal employees who work in close proximity to individuals infected with virulent biologicals entitled to hazardous duty pay when such exposure is not usually involved in carrying out the performance of their regularly assigned duties?”

In Dreiling v. United States, a pro se petitioner asked the Court to review the following questions:

  1. “Shall the Court of Federal Claims have jurisdiction to render judgment upon any claim against the United States founded upon any regulation of an executive department?”
  2. “Whether the Court should overrule United States v. Jones, 131 U.S. 1 (1889), or clarify the holding in Jones and recognize the plain language of 28 U.S.C. § 1491(a)(1) confers equitable jurisdiction upon the Court of Federal Claims.”

Finally, pro se petitioners filed petitions in two cases:

Briefs in Opposition

Three briefs in opposition were filed.

First, the Secretary of Veterans Affairs filed a brief in opposition in Rudisill v. McDonough, a case raising a question about education benefits. The petitioner presented the following question for review:

  • “Whether a veteran who has served two separate and distinct periods of qualifying service under the Montgomery GI Bill, 38 U.S.C. § 3001 et seq., and under the Post-9/11 GI Bill, 38 U.S.C. § 3301 et seq., is entitled to receive a total of 48 months of education benefits as between both programs, without first exhausting the Montgomery benefit in order to obtain the more generous Post-9/11 benefit.”

In its brief in opposition to the petition, McDonough argues that “the en banc court of appeals correctly rejected” the contention that “Section 3327(d)(2)’s limitations apply only to a veteran with a single period of service, not to a veteran with multiple qualifying periods of service.” McDonough contends that “further review is not warranted.”

Second, the Secretary also filed a brief in opposition in Skaar v. McDonough, another veterans case raising questions about the Veterans Court’s ability to certify a class for a class action lawsuit. The petitioner presented the following question for review:

  • “[D]oes the Veterans Court have statutory or inherent authority to include veterans whose individual claims are not yet exhausted in a class seeking injunctive relief, where the court has jurisdiction over a named representative’s claim?”

In its brief in opposition to the petition, McDonough asserts “the court of appeals correctly held that the Veterans Court exceeded its jurisdiction by certifying a class that includes veterans who have not presented claims to the Board or who have not yet received Board decisions.” McDonough further argues that “that conclusion does not conflict with any decision of this Court” and as a result “further review is not warranted.”

Third, Sig Sauer Inc. filed its brief in opposition in NST Global, LLC v. Sig Sauer Inc., a patent case raising questions about the burden to invalidate claims in an inter partes review proceeding and a patent owner’s due process rights. The petitioner presented the following questions for review:

  1. “Whether the Federal Circuit’s affirmance of the Patent Trial and Appeal Board’s decision that results from the Board’s sua sponte construction of a patent’s preambles as limiting based on convoluted and conflicting preamble construction standards, impermissibly eliminates or shifts the burden to invalidate a patent from the patent challenger in an Inter Partes Review Proceeding in contravention of statutory requirements under 35 U.S.C. §§ 112, 282, and 316.”
  2. “Whether the Federal Circuit’s affirmance of the Patent Trial and Appeal Board’s Decision violated Patent Owner’s Due Process Rights and the Administrative Procedure Act where Patent Owner was not given notice that the Board was considering whether the language of a patent’s preamble was limiting such as to invalidate patent claims nor given an opportunity to present argument or evidence that the preamble was not limiting.”
  3. “Whether in appeals from the United States Patent and Trademark Office, the Federal Circuit’s use of Federal Circuit Rule 36, which (ii) provides for a summary affirmance without opinion, violates constitutional guarantees, statutory protections under 35 U.S.C. § 144, and undermines public trust in the judicial system.”

In its brief in opposition, Sig Sauer contends “the board did not rule sua sponte; it agreed with Sig Sauer’s contentions.” Additionally, Sig Sauer argues, “NST failed to dispute that the preambles were limiting during the IPR proceedings, thereby waving its challenge.” Sig Sauer further asserts that, “even if PTAB ruled ‘sua sponte,’ the specific facts of this case limit its reach and counsel against review” because “NST had notice and opportunity” and “NST failed to challenge a second and independently sufficient ground the PTAB cited to support its findings.” Sig Sauer also remarks that “this case is not an appropriate vehicle to address issues of summary affirmance under Federal Circuit Rule 36” because “the presence or absence of a written decision has no impact on NST’s appeal” and “NST has not shown it has standing to challenge Federal Circuit Rule 36 affirmances.”

Waivers of Right to Respond

Both Eurofins Viracor and Natera waived their right to respond in CareDx Inc. v. Natera Inc., a patent case asking the Court to review “whether a new and useful method for measuring a natural phenomenon . . . is eligible for patent protection under Section 101” of the patent statute.


The court denied certiorari in the following cases: