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 issued an opinion in Harrow v. Department of Defense, one of the two cases decided by the Federal Circuit that it is reviewing this term. With respect to petitions, the Supreme Court granted a petition in a veterans case, Bufkin v. McDonough. In addition, five new petitions were filed, four new briefs in opposition to petitions were filed, four new waivers of the right to respond were filed, and one reply brief was filed. Finally, the Court denied five petitions. Here are the details.

Granted Cases

Yesterday the Supreme Court issued its opinion in Harrow v. Department of Defense, answering the question of whether the deadline to appeal judgments of the Merit Systems Protection Board is jurisdictional. In short, the Court held that the deadline is not jurisdictional.

We are still waiting on the Supreme Court to issue opinions in its other pending case argued in the current term, Vidal v. Elster, a trademark case.



The Supreme Court granted certiorari in Bufkin v. McDonough, a veterans case. During its next term the Court will consider the following question:

  • “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”?

New Petitions

Since our last update, five new petitions were filed with the Court.

In Eolas Technologies Inc. v., Inc., a patent case, Eolas Technologies asked the Court to review the following questions:

  1. “Whether claims drawn to solving specific problems restricting the usefulness of an existing computer-network technology recite patent-eligible subject matter under 35 U.S.C. § 101 and Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 573 U.S. 208 (2014).”
  2. “Whether Alice’s two-step eligibility analysis under § 101 can properly subsume considerations of conventionality, functional claiming, and specificity of description—which traditionally fall under 35 U.S.C. §§ 102, 103, and 112.”
  3. “Whether the claims of the ’507 patent are eligible for patenting under § 101 and Alice.”

In addition, four petitions were filed by pro se parties in the following cases:

Briefs in Opposition

Since our last update, briefs in opposition to petitions were filed in four cases.

In Flynn v. Department of State, a case originally decided by the Merit Systems Protection Board, the Department of State submitted its brief in opposition to the petition. The petitioner asked 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.”

Now, in response, the government argues that the language of the law, and specifically the word “during,” “connotes more than a mere temporal overlap, and a federal civilian employee is entitled to differential pay . . . only when his active-duty service has some connection to a declared war or national emergency.”

In Norby v. Social Security Administration, the Social Security Administration submitted a similar brief in opposition to the petition, which presented the same question. The petitioner asked the Court to review the following question.

Likewise, in Feliciano v. Department of Transportation, the Department of Transportation submitted a similar brief in opposition to a similar petition.

In Schwendimann v. Neenah, Inc., a patent case, Neenah submitted its brief in opposition to a petition that presented 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?”

Neenah argues the Court should deny the petition because “Petitioner’s halfhearted challenge to Federal Circuit Rule 36—a procedure employed by that court to manage its docket and promote judicial efficiency—is not cert worthy.” Furthermore, Neenah states, “the core premise for Petitioner’s challenge—that it is ‘unclear which claim constructions the Federal Circuit adopted when it engaged in its anticipation analysis’—is wrong.” According to Neenah, “[t]he only claim constructions being reviewed by the Federal Circuit were those decided by the Board.” Finally, Neenah, argues, “[t]he central holding below—that the challenged patents are invalid because they are anticipated—is factbound, supported by substantial evidence, and holds no special importance on any issue outside the confines of this case.”

Waivers of the Right to Respond

Waivers of the right to respond to petitions were filed in four cases.

Columbia Sportwear North America, Inc. waived its right to respond to the petition in Seirus Innovative Accessories, Inc. v. Columbia Sportswear North America, Inc., a patent case.

The government waived its right to respond to the petitions in three pro se cases:

New Reply

In Schwendimann v. Neenah Inc., the patent case introduced above, Schwendimann filed her reply brief. In it, Schwendimann argues the Court should grant review because “this is precisely the type of case in which this Court’s exercise of its supervisory role is warranted.” According to Schwendimann, “[w]ithout this Court’s intervention, patent owners will have their valuable patent rights stripped away without ever knowing the basis, the public will not receive notice of the scope of the patent claims, and petitioners and patent owners will receive disparate treatment.” Schwendimann also asserts that “Neenah’s argument about the ‘hypothetical’ nature of Schwendimann’s second issue presented demonstrates precisely why review is needed here: Patent Owner should be permitted to know the claim constructions upon which her claims were invalidated so that she may form a ‘non-hypothetical’ issue for appeal.”


Since our last update, the Supreme Court denied certiorari in the following cases: