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. While no new petitions were filed with the Court, a waiver of right to respond was filed in a pro se case, a reply brief was filed in a patent case, and four amicus briefs were filed in two Merit Systems Protection Board cases presenting the same question. Here are the details.

Granted Cases

There is no new activity to report.


Waiver of Right to Respond

In Golden v. United States, a pro se case, the government waived its right to respond.

Reply Brief

In Schwendimann v. Neenah, Inc., a patent case, Schwendimann filed her reply brief. 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?”

The brief in opposition asserted 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 argued, “the decision below faithfully applies [the Supreme] Court’s precedent and creates no conflict with any Federal Circuit decision.”

In her reply brief, Schwendimann asserts the Federal Circuit’s “decision repudiates [the Supreme] Court’s controlling precedent on patent obviousness, creating ambiguity on whether selection of a primary reference based on hindsight reasoning is permitted.” Schwendimann argues the “Court’s precedent requires that the obviousness analysis include an ‘explicit’ ‘reason to combine the known elements in the fashion claimed by the patent at issue.’” According to Schwendimann, “Neenah’s Response does not dispute that Neenah (and the Board) failed to articulate why a skilled artisan would have selected Kronzer as the ‘primary reference,’” suggesting “[t]he absence of the required ‘explicit’ analysis.” Furthermore, Schwendimann argues, the Federal Circuit’s “finding of forfeiture was incorrect” because she “preserved the substance of her Primary Reference Argument.”

Amicus Briefs

Since our last update, amicus briefs were filed in two similar cases.

First, two amicus briefs were filed in Flynn v. Department of State. In this Merit Systems Protection Board case, the petitioner asks the Court 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.”

Military-Veterans Advocacy filed an amicus brief in support of the petitioner. In this brief, Military-Veterans Advocacy asserts the Federal Circuit “delivered a result that penalizes servicemembers without recourse to the pro-veteran canon.” According to MVA, “Congress has long legislated ‘to protect those who have been obliged to drop their own affairs to take up the burdens of the nation.’” MVA argues that, “[h]ad the Federal Circuit interpreted the differential-pay statute through the prism of the pro-veteran canon, . . . [the Federal Circuit] would not have adopted an atextual interpretation that risks financial hardship for nearly 200,000 reservists.”

The Reserve Organization of America also filed an amicus brief in support of the petitioner. In this brief, the Organization asserts “[t]he differential-pay statute is an important part of Congress’s scheme to promote the military’s operational readiness.” According to the Organization, “the differential-pay statute helps to recruit and retain Reservists for that fighting force” and “makes sure that Reservists will not hesitate to answer their nation’s call for fear of missing a loan payment or allowing a bill to go unpaid.” Further, the Organization argues, the “Federal Circuit’s cramped reading of the statute has no basis in its text or structure,” but “relies on a vague (and demonstrably incorrect) hunch about the statute’s purpose.” 

Second, two amicus briefs were also filed in Feliciano v. Department of Transportation, another Merit Systems Protection Board case. In this case, the petitioner asked the Court to review the same question as in Flynn.

  • The Military-Veterans Advocacy filed a similar amicus brief in support of the petitioner.
  • The Reserve Organization of America filed the same amicus brief in support of the petitioner.