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, the Supreme Court will hear oral argument next week in Harrow v. Department of Defense, a case concerning the Merit Systems Protection Board and whether a filing deadline is jurisdictional. With respect to petitions, two new petitions were filed in a patent case and a pro se case, a waiver of right to respond was filed in a pro se case, two briefs in opposition were filed in a patent case and in a veterans case, and an amicus brief was filed in a Merit Systems Protection Board case. Finally, the Court denied petitions in a pro se case and in a patent case. Here are the details.

Granted Cases

On Monday, the Supreme Court will hear oral argument in Harrow v. Department of Defense, a case originating at the Merit Systems Protection Board in which the Supreme Court will review “whether the 60-day deadline in [5 U.S.C.] Section 7703(b)(1)(A) is jurisdictional.” For more information, check out our argument preview.


New Petitions

Two new petitions were filed with the Court.

In Schwendimann v. Neenah, Inc. (Schwendimann II), a patent case, the petitioner asked the Court to review the following questions:

  1. “Is it permissible for the Federal Circuit to issue a Rule 36 Judgment, affirming certain claims as anticipated, where the Federal Circuit has been presented with inconsistent claim constructions from (1) the United States Patent and Trademark Office’s Patent Trial and Appeal Board (‘PTAB’) and (2) a District Court, and the Federal Circuit’s Rule 36 affirmance does not state which claim constructions were held correct, thereby making it impossible for Patent Owner and the public to know how the claims were construed, and making it impossible for Patent Owner to seek review of the claim constructions?”
  2. “Assuming, arguendo (and with no way of knowing), that the Panel found that the District Court’s constructions of the claim terms were correct (and either rejected the PTAB’s claim constructions or somehow reconciled the two sets of claim constructions), was it erroneous for the Panel to invalidate claims as anticipated where there was no express or inherent disclosure that the prior art reference contained each of the claim limitations in the invalidated patent claims?”

In Ottah v. Verifone System Inc., a pro se petitioner filed a petition with the Court.

Waiver of Right to Respond

The government waived its right to respond to the petition in Chin-Young v. Department of the Army, a pro se case.

Briefs in Opposition

In Vanda Pharmaceuticals Inc. v. Teva Pharmaceuticals USA, Inc., a patent case, Teva Pharmaceuticals USA, Inc. filed its brief in opposition. The petition presented 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?”

In its brief in opposition, Teva asserts “Vanda did not invent tasimelteon.” Rather, Teva continues, “pharmaceutical giant Bristol Myers Squibb (BMS) . . . granted an exclusive license to Vanda” and “Vanda obtained additional patents concerning uses of tasimelteon” after BMS’s patent expired. Teva points out, however, “that ‘when a patent “simply arranges old elements with each performing the same function it had been known to perform,” and yields no more than one would expect from such an arrangement, the combination is obvious.’” Teva argues “[t]his is precisely the analysis—and conclusion—of the lower courts here.” Furthermore, Teva argues, “Vanda never raised any question about the legal standard for obviousness before now.”

In Bufkin v. McDonough, a veterans case, the government filed its brief in opposition. The petition presented the following question for review:

  • “Must the Veterans Court ensure that the benefit-of-the-doubt rule was properly applied during the claims process in order to satisfy 38 U.S.C. § 7261(b)(1), which directs the Veterans Court to ‘take due account’ of VA’s application of that rule?”

In its brief in opposition, the government asserts Bufkin’s argument that “Section 7261(b)(1) of Title 38 ‘calls for a separate review of the benefit-of-the-doubt issue’ that is not limited by the requirements of Section 7261(a) and (c) . . . contravenes the plain text of Section 7261.” Furthermore, the government argues, “[t]he petition does not address or acknowledge Congress’s decision to nest the Veterans Court’s benefit-of-the-doubt review . . . under the same standards of review.” Turning to legislative history, the government maintains the “‘compromise version’ of the bill that was ultimately enacted into law” “‘maintain[s] the current “clearly erroneous” standard of review’” and “provide[s] special emphasis during the judicial process to the ‘benefit of the doubt’ provisions of section 5107(b).”

Amicus Brief

An amicus brief was filed in support of petitioner in Feliciano v. Department of Transportation, a Merit Systems Protection Board case. In this 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.”

Texas, South Carolina, eighteen other states, and the District of Columbia filed an amicus brief asserting “Feliciano falls under” the statute’s “catchall provision, which sweeps in any lawful call or order to active duty during a war or declared national emergency” and is therefore “entitled to differential pay” under the statute. According to these states, the Federal Circuit “misunderstood the connection between 5 U.S.C. § 5538 (the differential-pay statute) and 10 U.S.C. § 101(a)(13)(B),” which “defines ‘contingency operation.’” Furthermore, these states argue, the Federal Circuit “erred with respect to the ejusdem generis canon.” According to the states, “[t]hat canon is irrelevant here because the statute is unambiguous” and, “even if the canon were relevant, the [Federal Circuit] misapplied it.”


The Supreme Court denied certiorari in two cases: