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 heard oral argument this week in a case originating at the Merit Systems Protection Board, Harrow v. Department of Defense. With respect to petitions, one new petition was filed in a design patent case, a brief in opposition was filed in a veterans case, and the Court denied a petition in a pro se case. Here are the details.

Granted Cases

This past Monday, the Supreme Court heard oral argument in Harrow v. Department of Defense, a case originating at the Merit Systems Protection Board. In this case, the Supreme Court will determine “whether the 60-day deadline in [5 U.S.C.] Section 7703(b)(1)(A) is jurisdictional.” We will post an argument recap later this week.


New Petition

In Seirus Innovative Accessories, Inc. v. Columbia Sportswear North America, Inc., a design patent case, the petitioner asked Court to review the following questions:

  1. “Whether function must be disregarded in defining the scope of comparison prior art relevant to design patent infringement.”
  2. “Whether comparison prior art can be considered in evaluating design patent infringement even if it is not the exact ‘same article’ and thus could not anticipate for purposes of determining validity.”

Brief in Opposition

In Forsythe v. McDonough, a veterans case, the government filed its brief in opposition. The petition presented the following questions:

  1. “Whether the Federal Circuit misinterpreted 38 U.S.C. § 5103(a)(1) to allow VA to issue evidentiary notice only before receiving a veteran’s claim, even though the statute requires notice that accounts for evidence ‘not previously provided to the Secretary that is necessary to substantiate the claim.’”
  2. “Whether the Federal Circuit violated the longstanding doctrine of Accardi v. Shaughnessy, 347 U.S. 260 (1954), by permitting VA to violate its own regulation on the ground that the agency’s noncompliance cannot be ‘prejudicial’ to veterans.”

In its brief, the government argues “[n]othing in 38 U.S.C. [§] 5103(a) precluded the VA from providing the required notice before rather than after the agency received petitioner’s application.” Looking to “Section 5103(a)(1)’s drafting history,” the government highlights how Congress “removed the introductory phrase ‘[u]pon receipt of a complete or substantially complete application’ and” included “that the notice should be made ‘by the most effective means available.’” Moreover, according to the government, the Federal Circuit correctly “held that, even if the VA’s regulation required petitioner’s sequencing, any error in providing the notice too early was harmless.”


The Supreme Court denied certiorari in Golden v. United States, a pro se case.