Petitions / Supreme Court Activity
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Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. With respect to the two cases pending at the Supreme Court that were previously decided by the Federal Circuit, merits briefs and amicus briefs were filed. With respect to petitions, five new petitions were filed, three briefs in opposition to petitions were filed, two new waivers of the right to respond were filed, and one new amicus brief was filed. Here are the details.

Granted Cases

Since our last update there has been activity in the two cases pending at the Supreme Court that were previously decided by the Federal Circuit.

Feliciano v. Department of Transportation

In Feliciano v. Department of Transportation, the opening merits merits brief and six top-side amicus briefs were filed. This case originated at the Merit Systems Protection Board. The question presented is “[w]hether 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.” The petitioner, Nick Feliciano, filed his opening merits brief. Amicus briefs in favor of the petitioner were filed by the following groups:

Bufkin v. McDonough

In Bufkin v. McDonough, two briefs and five amicus briefs were filed. This is a veterans case presenting 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?” The petitioners, Joshua E Bufkin, et al. filed their opening merits brief, and the respondent, the Secretary of Veterans Affairs, filed his response brief. The following groups filed amicus briefs in this case:

Petition Cases

New Petitions

Five new petitions were filed with the Court, one in a patent case and four in pro se cases.

In Roku, Inc. v. International Trade Commission, the patent case, the Court was asked to review the following questions:

  1. “Did the ITC exceed its Section 337 authority by finding the entirety of complainant’s investments in unpatented, multi-purpose software to be ‘with respect to the articles protected by the patent?’”
  2. “Did the ITC exceed its Section 337 authority by failing to consider whether the complainant’s investments in unpatented, multi-purpose software were ‘substantial’ ‘with respect to the articles protected by the patent?’”

Here are the pro se cases:

Briefs in Opposition

Briefs in opposition to petitions were filed in three patent cases.

United Therapeutics Corporation v. Liquidia Technologies, Inc.

In this case, Liquidia Technologies filed its brief in opposition. The petition presented the following questions:

  1. “Whether the IPR statute and SAS require the Federal Circuit to review de novo, or only for an abuse of discretion, the PTO’s reliance on new grounds and new printed publications—not raised in the initial petition— when deciding to cancel patent claims.”
  2. “Whether, if § 312 is deemed ambiguous, the Court should overrule Chevron.”

In its brief in opposition, Liquidia Technologies argues the petition “is based on a fundamentally false premise: that the Federal Circuit, contrary to 35 U.S.C. § 312(a)(3) (Section 312), deferred to a determination by the Patent Trial and Appeal Board . . . allowing ‘new grounds and new printed publications’ supporting unpatentability to be introduced into the inter partes review . . . proceedings.” According to Liquidia Technologies, “[t]he Federal Circuit did no such thing here.”

Cellect, LLC v. Vidal

In this case, the Director of the Patent and Trademark Office filed her brief in opposition. The petition presented 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.”

In her brief, Vidal argues the Federal Circuit “correctly held” that the patent statute “does not preclude ordinary application of obviousness-type double-patenting doctrine.”

Chesek PLLC v. Vidal

In this case, the Director of the Patent and Trademark Office filed her brief in opposition. The question presented is:

  • “Whether the PTO is exempt from notice-and-comment requirements when exercising its rulemaking power under 35 U.S.C. § 2(b)(2).”

In her brief, Vidal argues that “the Federal Circuit’s decision does not conflict with any decision of this Court or another court of appeals,” and that “Petitioner’s claim is beside the point in any event, because the USPTO did provide for notice and comment here.”

Waivers of Right to Respond

In Zebra Technologies Corporation v. Intellectual Tech, LLC, a patent case, Intellectual Tech, LLC waived its right to respond to the petition, which presented the following question:

  • “Whether a party has Article III standing to assert a claim for patent infringement against an accused infringer who has the ability to obtain a license from a third party.”

In Reed v. Department of Veterans Affairs, a pro se case, the Department of Veterans Affairs waived its right to respond to the petition.

Amicus Briefs

One new amicus brief was filed inn Cellect, LLC v. Vidal, a patent case discussed above that presents 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.”

The amicus brief was filed by Inari Agriculture, Inc. and opposes any grant of certiorari.