Supreme Court Activity
on

Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. This week’s highlights include new petitions filed in a patent case raising questions related to Rule 36 and a pro se case raising questions related to Whistleblower Protection Act, a new brief in opposition filed in another patent case raising questions related to patent eligibility, and a new waiver of the right to respond in a third patent case raising questions related to prior art that may be asserted in inter partes review proceedings. Here are the details.

New Petitions

Two new petitions were filed with the Supreme Court this past week.

In Herbert v. Allied Rubber & Gasket Co., a patent case, the petition asks the Supreme Court to review the following questions:

  1. “Whether the Federal Circuit’s affirmance of the district court’s grant of summary judgment without an opinion under Rule 36 is permissible, when the decision conflicts with the Federal Circuit’s own precedent, which would warrant a reversal.”
  2. “Whether the district court erred in granting summary judgment of non-infringement despite admissible circumstantial evidence that the defendant knowingly marked the accused device with the patent-in-suit, which could support a reasonable jury’s finding of infringement.”

In Reed v. Department of Veterans Affairs, a pro se case, the petition asks the Court to review the following questions:

  1. “Under the Whistleblower Protection Act, does an HR specialist who, after reporting her coworker and first level supervisor for harassment, engage in protected activity, sufficient to merit protection from retaliation under the Act, when she discloses to the 4th level supervisor that l) the same coworker and supervisor later fabricated evidence against her to get her disciplined, in violation ofAgency rules and the Federal Code ofEthics; 2) that the second level supervisor used that fabricated evidence to discipline the specialist without affording her any due process notice of the charges or chance to respond, in violation of the mandatory procedures set forth in the agency policy and in the Constitution; 3) that the second level supervisor then intentionally failed to address these matters that were set forth in the specialist’s informal grievance of the discipline, in violation of agency policy, their HR job requirements, and the Federal Code of Ethics, and also failed to follow numerous other mandatory procedures, including, but not limited to, allowing the specialist to present the grievance orally, with a representative, 4) that the second and third level supervisor even failed to permit the 4th level supervisor to serve as deciding official to the formal grievance, as required by the agency policy, and instead, allowed the third level supervisor to write a fraudulent document that he tried to pass of as a formal grievance decision, in violation of agency policy, and 5) that the second and third level supervisor tried to prevent the specialist from meeting with the 4th level supervisor about these issues, and threatened discipline for doing so before the entire HR staff?”
  2. “Did the Federal Circuit err in holding that the VA policy governing disciplinary actions and grievances of all VA employees, that was published in the federal register and that encompasses the statutory, regulatory and legal requirements governing disciplinary actions of all VA employees, which the VA Secretary is mandated to carry out, is not a law, rule or regulation, and that as a result, an HR Specialist, whose very job it is to ensure agency compliance with this policy in the taking of such personnel actions, who witnesses and reports repeated willful violations of this policy by the human resources management officials charged with ensuring agency compliance, is not afforded any whistleblower protections?”
  3. “Did the administrative judge err when she 1) determined that these disclosures were not protected; 2) unilaterally disallowed the very joint stipulations that the judge required be submitted into evidence, where the agency stipulated that the procedures I reported were required in both agency policy and job duties and that the alleged misconduct and management’s failure to address the alleged misconduct, represented violations of agency policy and the Federal Code of Ethics; 3) unilaterally determined that the agency policy does not apply to me or to any other Title 5 employee, despite the fact that this is wholly inaccurate, contradicts the plain language as written, and neither party to the case would have dared to make that argument?”
  4. “Whether an agency commits a due process violation when it disciplines an employee without providing the employee notice of the allegations and an opportunity to respond, in accordance with the mandated procedures set forth in its own policy, the Due Process Clause of the Constitution, and the ruling in Cleveland Bd. of Educ. v. Laudermill 470 U.S. 532 (1985)?”
  5. “Whether the AJ erred and/or engaged in retaliation per se by holding that the whistleblower’s written report of her supervisor’s inappropriate conduct was an admission of the whistleblower’s misconduct where the whistleblower’s report lacks any such admission?”
  6. “Did the AJ err when she unilaterally disallowed the joint stipulations to serve as evidence without any credible basis to do so, despite the fact that the agency had stipulated to the policy requirements, management’s failure to follow those policy requirements, and to the fact that the whistleblower reported these policy violations to their superior?”

New Response in Opposition

In Eolas Technologies Inc. v. Amazon.com, Inc., a patent case Amazon.com filed its brief in opposition to the petition. In its petition, Eolas presented 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.”

Amazon.com argues in its response that the Federal Circuit’s “decision was an unremarkable application of Alice that broke no new legal ground.” It says that, while “Eolas contends that the Federal Circuit’s decision somehow conflicts with Alice,” that is “[n]ot so.” Likewise, according to Amazon.com, “Eolas also contends that this Court should grant certiorari to reduce alleged ‘confusion’ regarding Alice’s proper application.” “But,” says Amazon.com, “this Court has repeatedly rejected similar requests, and the premise of those requests is unfounded in any event.”

New Waiver of the Right to Respond

In Provisur Technologies, Inc. v. Weber, Inc., a patent case, Weber waived its right to respond to the petition, which presented the following questions:

  1. “Did the Federal Circuit err by holding that a product manual distributed with an on sale product necessarily constitutes a printed publication that can be asserted in an IPR, notwithstanding other considerations such as limited distribution, prohibitively high cost, confidentiality restrictions, and industry practice and expectations?”
  2. “Was the Federal Circuit’s determination that a product manual constitutes a printed publication because it was distributed with an on-sale product consistent with 35 U.S.C. § 311(b), which expressly excludes ‘on sale’ prior art from grounds that may be asserted in inter partes review?”