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, two new petitions were filed with the Court. One came in a patent case addressing both joinder in inter partes review proceedings and the Federal Vacancies Reform Act. The other came in a case addressing the Fair Labor Standards Act. Additionally, three waivers of right to respond were filed in the same patent case, and a brief in opposition was filed in another patent case addressing joint inventorship. Finally, the Court denied nine petitions in three patent cases, a trade case, and five pro se cases. Here are the details.

Granted Cases

There is no new activity to report.

Petition Cases

New Petitions

Two new petitions were filed with the Court.

In VirnetX Inc. v. Mangrove Partners Master Fund, Ltd., a patent case, the Court was asked to review the following questions:

  1. “Whether the Federal Circuit erred in upholding joinder of a party under 35 U.S.C. § 315(c), where the joined party did not ‘properly file[ ] a petition’ for inter partes review within the statutory time limit.”
  2. “Whether the Commissioner’s exercise of the Director’s review authority pursuant to an internal agency delegation violated the Federal Vacancies Reform Act.”

In Martin v. United States, a Fair Labor Standards Act case, the following question was presented to the Court for review:

  • “Do either the Anti-Deficiency Act or the Gov­ernment Employee Fair Treatment Act dis­place, modify or require a special narrower interpretation of the obligations created by the FLSA insofar as those obligations apply to federal employees?”

Waivers of Right to Respond

Three waivers of right to respond were filed in VirnetX Inc. v. Mangrove Partners Master Fund, Ltd., the patent case previously mentioned:

  • The government waived its right to respond.
  • Apple Inc. waived its right to respond.
  • Mangrove Partners Master Fund, Ltd. waived its right to respond.

Brief in Opposition

In HIP, Inc. v. Hormel Foods Corp., a patent case addressing joint inventorship, Hormel Foods Corp. filed its brief in opposition. The petition presented the following questions:

  1. “Whether joint inventorship requires anything more than a contribution to conception that is stated in a patent claim.”
  2. “Whether, under [Title 35] Section 116(a), a claimed and enabled contribution to conception can be deemed insignificant in quality based on the quantity of disclosure in the specification.”

In its brief in opposition, Hormel Foods contends the Federal Circuit found the contributions allegedly made by HIP were “‘insignificant in quality’ to the claimed invention,” which does not meet the Federal Circuit’s test for joint inventorship. According to Hormel Foods, moreover, “HIP has waived any argument” that this is an incorrect test. In particular, Hormel contends, HIP has “repeatedly argued to the lower courts” that the Federal’ Circuit’s test “is the proper test.”


The Supreme Court denied certiorari in nine cases in total, including three patent cases and one trade case. In one of the patent cases, CareDx Inc. v. Natera Inc., addressing patent eligibility, however, Justice Kavanaugh would have granted the petition. Here are the other cases:

Besides these patent and trade cases, the Supreme Court denied certiorari in the following pro se cases: