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, we are still waiting on the Supreme Court to issue opinion in one case. With respect to petitions, one new petition was filed with the Court in a patent case, one new waiver of the right to respond was filed in a pro se case, three new replies were filed in separate Merit Systems Protection Board cases all presenting the same question for review, and the Court denied two petitions in a pro se case and in a patent case. Here are the details.

Granted Cases

We are still waiting on the Supreme Court to issue its opinion in the only remaining case originally decided by the Federal Circuit and argued in the current term, Vidal v. Elster, a trademark case.


New Petition

Since our last update, one new petition was filed with the Court.

In Cellect, LLC v. Vidal, Cellect asked the Court to review the following question:

  • “Whether a patent procured in good faith can be invalidated on the ground that statutory Patent Term Adjustment, which requires lengthening a patent’s term to account for time lost to Patent and Trademark Office delays, can trigger a judge-made patent-invalidation doctrine.”

Waivers of the Right to Respond

The United States waived its right to respond in Mandry v. United States, a pro se case.

New Replies

Three new replies were filed in three separate cases that each asked the same substantive question in their petitions:

  • [W]hether differential pay is, as the governing statute provides, available to civilian federal employees when they are called to active duty under ‘any . . . provision of law during a war or during a national emergency declared by the President or Congress.’”

In Flynn v. Department of State, the first case presenting this question, Flynn argued in his reply brief that “the government’s supposed vehicle issue . . . is no issue at all.” Flynn goes on to explain that, “[w]hile the government here is trying to portray a potential alternative basis for affirmance as a vehicle problem, the Solicitor General has time and again won review under indistinguishable circumstances.” According to Flynn, in the past the government has “not[ed] that uncertainty as to the ‘ultimate outcome’ of a case ‘does not deny . . . a vehicle for the Court to consider important questions concerning [statutory] interpretation,’ and . . . ‘[t]he possibility that [respondent] might ultimately’ win on alternative grounds ‘would not prevent the Court from addressing the questions presented in the petition.'”

In Feliciano v. Department of Transportation, the second of these three cases, Feliciano argued in his reply brief that “[t]he government’s arguments against review are meritless.” Feliciano says that the government’s only merits argument asserts that the “word ‘during’ requires more than a temporal link.” According to Feliciano, the government, however, “points to no textual indica that Congress intended the word to take on this atypical meaning, and all relevant statutory context shows otherwise.” Furthermore, Feliciano argues, “the significant gap between the government’s position and the court of appeals decision it purports to defend only adds to the confusion and is reason enough to grant review.”

In Nordby v. Social Security Administration, the third of these three cases, Nordby argued in his reply brief that, while “[t]he government has identified purported vehicle problems in both Feliciano and Flynn,” it has “raised no such problems in this case.” Regardless, Nordby agrees with the other petitioners “that those cases do not present any vehicle problems and reiterates his request that the Court grant the Feliciano petition.” Nordby “respectfully requests” that the Court grant review in whichever case it deems the best for deciding the question underlying all three cases.

Amicus Brief

An amicus brief was filed in Cellect, LLC v. Vidal, a patent case we introduced above. The New York Intellectual Property Law Association filed a brief supporting a grant of certiorari. In its brief, the NYIPLA argues “the Petition presents questions of exceptional importance” regarding patent term adjustments and double patenting. In particular, the brief contends the Federal Circuit’s precedent and the Patent and Trademark Office “ran roughshod over statutory guarantees requiring that the PTO timely examine patent applications or extend the resulting patent’s life for the undue delays.”


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