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 will hear oral arguments next week in Vidal v. Elster, a trademark case. With respect to petitions, one new petition was filed with the Court in a patent case. Additionally, a waiver of right to respond was filed in the same patent case, and a reply brief was filed in support of a petition asking the Court to consider whether the deadline to file a petition to review a decision of the Merit Systems Protection Board is jurisdictional. Here are the details.
On Wednesday, the Supreme Court will hear oral arguments in Vidal v. Elster, a case asking the Supreme Court to review whether the U.S. Patent and Trademark Office’s “refusal to register a mark under Section 1052(c) [of the Lanham Act] violates the Free Speech Clause of the First Amendment when the mark contains criticism of a government official or public figure.” For more information, we will post an argument preview later this week.
In Cioffi v. Google LLC, a patent case, the following question was presented to the Court for review:
- “Should the Antares Pharma, Inc. v. Medac Pharma Inc., 771 F.3d 1354, 1358 (Fed. Cir. 2014) ‘exact embodiment’ standard for ‘original patent’ disclosure be overruled as inconsistent with 35 U.S.C. § 251 and this Court’s decision in U.S. Industrial Chemicals, Inc. v. Carbide & Carbon Chemicals, Corp., 315 U.S. 668 (1942)?”
Waiver of Right to Respond
- “When a federal employee petitions the U.S. Court of Appeals for the Federal Circuit to review a final decision of the Merit Systems Protection Board, 5 U.S.C. § 7703(b)(1)(A) provides: ‘Notwithstanding any other provision of law, any petition for review shall be filed within 60 days after the Board issues notice of the final order or decision of the Board.’ In the decision below, the Federal Circuit relied on settled circuit precedent holding this filing deadline to be jurisdictional, despite recent opinions from other Circuits and this Court holding analogous filing deadlines to be nonjurisdictional.”
- “The question presented is whether the 60-day deadline in Section 7703(b)(1)(A) is jurisdictional.”
In its brief in opposition, the government asserted previous Supreme Court decisions recognized that Section 7703(b)(1) “confer[ed] the operative grant of jurisdiction.” Thus, the government maintained, “[t]he timely filing of a petition from the Board’s final decision is a jurisdictional requirement.”
Now, in its reply brief, Harrow asserts the Supreme Court “treats a requirement as jurisdictional ‘only if Congress clearly states that it is.’” Thus, according to Harrow, because “Section 7703(b)(1)(A) ‘does not expressly refer to subject-matter jurisdiction or speak in jurisdictional terms,’” it “simply instruct[s] ‘parties [to] take certain procedural steps at certain specified times.’” Furthermore, Harrow argues “the characterization of Section 7703(b)(1)(A)’s deadline as jurisdictional conflicts with decisions holding [5 U.S.C. §] 7703(b)(2)’s deadline to be nonjurisdictional” because the “two deadlines are textually indistinguishable.”