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, yesterday the Supreme Court heard oral argument in a trademark case, Vidal v. Elster. With respect to petitions, two new petitions were filed with the Court in a trade case and a pro se case; an amicus brief was filed in a patent case addressing joinder in inter partes review proceedings. Finally, the Court denied petitions in a trade case and in two pro se cases. Here are the details.

Granted Cases

Yesterday, the Supreme Court heard oral arguments in Vidal v. Elster, a case in which the Supreme Court is reviewing 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.” We will post an argument recap later this week.

Next Wednesday, the Supreme Court will hear oral arguments in Rudisill v. McDonough, a case in which the Supreme Court will review a question concerning the intersection of two statutory provisions related to the provision of education benefits to veterans. For more information on this upcoming argument, we will post an argument preview early next week.

Petition Cases

New Petitions

Two new petitions were filed with the Court.

In Oman Fasteners, LLC v. United States, a trade case, the following question was presented to the Court for review:

  • “Must a federal court defer to the President’s interpretation of the Trade Expansion Act’s procedural requirements for imposing tariffs unless the President’s actions were clearly or explicitly unlawful?”

In Trimble v. Department of Veterans Affairs, a pro se case, the Court was asked to review the following questions:

  1. “When federal agencies take adverse actions causing denial of initial appointment, and purposefully use software settings and hiring processes that undermine and violate veterans preference laws relative to initial employment, are their willful infringements of a qualified veteran’s rights motivated by hatred of military service?”
  2. “Does Congress require an initial appointment to be granted to a qualified preference eligible after a federal agency violates that veteran’s preference rights, denies them initial appointment and illegally steals the job from that veteran to appoint, promote, transfer, reassign or reinstate a non-preference eligible or non-veteran under the vacancy due to hostility against military service that inspired legislation for veterans’ preference?”
  3. “When federal employees adjudicate veterans preference and initial employment discrimination matters, and ignore hiring misconduct to rule in favor of the law violators, do their decided actions prove hostility towards military service and an intent to work in the best interest of the violators?”

Amicus Brief

An amicus brief was filed in VirnetX Inc. v. Mangrove Partners Master Fund, Ltd., a patent case which asked the Court 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.”

Biotechnology Innovation Organization filed an amicus brief in support of the petitioner with respect to the first question presented. In this brief, BIO asserts “[t]he plain text of the [America Invents Act] prevents time-barred parties from joining an inter partes review initiated by another party.” According to BIO, however, “the Federal Circuit and the [Patent Trial and Appeal Board] have not applied this common-sense limitation,” resulting in parties “warp[ing] inter partes review into a vehicle for unending litigation.” BIO maintains that, if this petition is not granted, “patent holders will continue to be subject to serial and abusive patent challenges, discouraging investment and dampening American innovation.”


The Court denied certiorari in the following cases: