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, a merits brief was filed in Harrow v. Department of Defense, a case concerning the Merit Systems Protection Board and whether a filing deadline is jurisdictional or allows for equitable tolling. With respect to petitions, three new petitions were filed with the Court in three other Merit Systems Protection Board cases, a brief in opposition was filed in a patent case, and an amicus brief was filed in another patent case. Here are the details.

Granted Cases

In Harrow v. Department of Defense, the government submitted its merits brief. In this case, the Court will review “whether the 60-day deadline in [5 U.S.C.] Section 7703(b)(1)(A) is jurisdictional.” In its brief, the government argues “Section 1295(a)(9)’s plain text . . . incorporates Section 7703(b)(1)’s time limit as a jurisdictional prerequisite.” Further, the government asserts, the Supreme Court “has already held that Section 7703(b)(1) establishes ‘the jurisdictional perimeters’ of the Federal Circuit’s ‘power to adjudicate.’” Moreover, according to the government “[e]ven if this Court holds that Section 7703(b)(1)’s deadline is nonjurisdictional, it should affirm on the ground that the deadline is mandatory and thus not subject to equitable tolling” because “equitable tolling would require courts of appeals to engage in factfinding outside the agency or trial-court record.” 


New Petitions

Three new petitions were filed with the Court.

In Flynn v. Department of State, a Merit Systems Protection Board case, the Court was asked to review the following question:

  • “Whether a federal civilian employee called or ordered to active duty under a provision of law during a national emergency is entitled to differential pay even if the duty is not directly connected to the national emergency.”

In Nordby v. Social Security Administration, another Merit Systems Protection Board case, the same question was presented to the Court for review.

In Feliciano v. Department of Transportation, a third Merit Systems Protection Board case asking the Court to review the same question.

Brief in Opposition

In Schwendimann v. Neenah, Inc., a patent case, Neenah, Inc. and Avery Products Corporation filed their brief in opposition to the petition. The petition presented the following question:

  • “In conducting an obviousness analysis under 35 U.S.C. § 103, did the Federal Circuit err in holding that there ‘is no basis in our case law’ for requiring an articulated basis for choosing a reference in a prior art combination as the primary reference, when such a basis is required to comply with controlling precedent in KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 421, 127 S. Ct. 1727, 1742, 167 L. Ed. 2d 705 (2007), WBIP, LLC v. Kohler Co., 829 F.3d 1317, 1337 (Fed. Cir. 2016), and Yeda Rsch. v. Mylan Pharms. Inc., 906 F.3d 1031, 1044-45 (Fed. Cir. 2018), and where the choice of primary reference was dispositive?”

This brief in opposition asserts the “Federal Circuit rejected the primary reference argument” because Schwendimann “forfeited the argument by not raising it before the Board” and, “to the extent [it] was not forfeited, the argument has no basis in [the Federal Circuit’s] case law.” According to this brief, the Supreme Court’s “institutional role” involves “ensur[ing] clarity and uniformity of legal doctrine,” and “the question” in this petition “has no special importance beyond this case.” Further, Neenah and Avery Products argue, “the decision below faithfully applies [the Supreme] Court’s precedent and creates no conflict with any Federal Circuit decision.”

Amicus Brief

An amicus brief was filed in Vanda Pharmaceuticals Inc. v. Teva Pharmaceuticals USA, Inc., a patent case asking the Court to review the following question:

  • “Whether obviousness requires a showing of ‘predictable’ results, as this Court held in KSR, or a mere ‘reasonable expectation of success,’ as the Federal Circuit has held both before and after KSR?”

Salix Pharmaceuticals, Inc. and Ocular Therapeutix, Inc. filed an amicus brief in support of the petitioner. In this brief, Salix and Ocular assert “the mere existence of a clinical trial— without results—does not establish that skilled artisans would have reasonably expected success.” According to this brief, “before the results of a clinical trial are ever disclosed . . . the information posted on provides the public with a summary of the clinical trial protocol intended to be used to conduct the study.” Thus, this brief asserts, “filing a patent application after a clinical trial carries the risk that the patentee’s own mandatory disclosures will be used against it.”