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 issued an opinion in Bufkin v. Collins, a veterans case. Additionally, an opening merits brief and three amicus briefs in support of the petitioner were submitted in Soto v. United States, another veterans case. With respect to petitions, one new petition was filed in a patent case, and two new petitions were filed in pro se cases; a brief in opposition was filed in a patent case; two replies in support of petitions were filed in a patent case and a case related to Federal Circuit Rule 36; and two amicus briefs were filed in a patent case. In addition, the Court denied petitions in a patent case, a trade case, and a pro se case. Here are the details.
Granted Cases
Bufkin v. Collins
Last week the Supreme Court issued its opinion in Bufkin v. Collins, a veterans case. The petitioner had asked the Court to review 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?”
In an opinion written by Justice Thomas, the Court affirmed the judgment of the Federal Circuit. It held that the Veterans Court reviews the VA’s application of the benefit-of-the-doubt rule by reviewing legal issues de novo and factual issues for clear error, and that the VA’s determination that the evidence is in approximate balance is predominantly a factual determination reviewed only for clear error. We will post an opinion summary soon.
Feliciano v. Department of Transportation
We are still waiting on the Supreme Court to issue opinions in its other pending case already argued in its current term, Feliciano v. Department of Transportation, a case originally decided by the Merit Systems Protection Board.
Soto v. United States
In Soto v. United States, a veterans case, Soto filed his opening merits brief, while three amicus briefs in support of the petitioner were filed.
The Supreme Court granted certiorari to review the following question:
- “Given the Federal Circuit’s holding that a claim for compensation under 10 U.S.C. § 1413a is a claim ‘involving . . . retired pay’ under 31 U.S.C. § 3702(a)(l)(A), does 10 U.S.C. § 1413a provide a settlement mechanism that displaces the default procedures and limitations set forth in the Barring Act?”
In his brief, Soto asserts that “the statute on its face authorizes the Secretary concerned to determine whether a veteran is eligible for” Combat-Related Special Compensation “and what amount of CRSC should be paid,” and that “[t]he Barring Act has no application here.” He argues that “[n]o authority supports the Federal Circuit’s ‘specific language’ requirement” and that the “case law teaches away from interpreting statutes based on the presence or absence of ‘magic words.'” According to Soto, moreover, “the Federal Circuit should have applied the veterans canon—which was widely accepted, and presumably known to Congress, at the time the CRSC statute was enacted.” He further asserts that “the Federal Circuit’s suggestion that the CRSC statute must impose a statute of limitations to displace the Barring Act is inconsistent with the text of the Barring Act,” which makes clear that all of the Barring Act, including it statute of limitations, “does not apply to a claim if ‘another law’ provides for settlement, without regard to whether the other law also includes a statute of limitations.”
Military-Veterans Advocacy, Inc. and Disabled American Veterans filed an amicus brief. In this brief, they argue the CRSC program “is not cabined by any statute of limitations.” According to this brief, because the program “provides for the Secretary of the applicant’s military department to validate and settle combat-related claims with specific appropriated funds, it does not fall under the Barring Act’s default time bar.” The brief further asserts that “Congress intended to fully compensate these especially valiant military retirees for their sacrifices” and that the “CRSC statute—enacted to rectify an ‘unjust’ reduction in retirement pay for disability compensation—displaces the Barring Act’s six-year statute of limitations to ensure these veterans are made whole.”
Connecticut Veterans Legal Center also filed an amicus brief. In its brief, it asserts “the plain language of § 1413a is dispositive” because “the text of the CRSC statute makes clear that it is ‘another law’ that provides a mechanism to settle, or administratively determine the validity of, claims for CRSC.” It argues in particular that “the CRSC statute contains a more specific authorization of settlement authority compared to the Barring Act.” Moreover, according to the brief, “the history of the CRSC statute confirms that it provides a settlement mechanism for CRSC claims.” The brief further asserts that “the statutorily mandated procedures prescribed by the Secretary of Defense to evaluate CRSC claims demonstrate that the CRSC statute sets out an independent settlement mechanism.” It continues by arguing that “[t]hese procedures have all the hallmarks of a separate administrative system to determine the validity of CRSC claims.”
National Law School Veterans Clinic Consortium also filed an amicus brief. In this brief, it argues “Congress provided special compensation to combat-wounded veterans, recognizing their heightened claim to benefits above standard military retirement.” According to the brief, § 1413a explicitly states that “CRSC is distinctly ‘not retired pay.'” It further argues that, given the “multiple substantial barriers that combat-wounded retirees will uniquely face in navigating the CRSC system,” “it is unsurprising that the CRSC statute provides its own settlement mechanism apart from the strictures of the Barring Act.” The brief asserts that the “Federal Circuit’s ruling improperly deprives combat-wounded retirees of the full benefits that the CRSC statutory text permits them to receive.”
Petition Cases
New Petitions
In Cellspin Soft, Inc. v. Fitbit LLC, a patent case, Cellspin Soft, Inc. asked the Court to review the following questions:
- “Should the merits as to the question of recusal under 28 U.S.C. § 455(a) be decided first, before reaching the merits of any potential abuse of discretion in excluding evidence in the district court?”
- “Is the failure to rule on the merits under § 455(a) a due process violation, especially when the spouse of the district court judge has accepted $700 Million in part from Google (which is a party to ongoing litigation), and has five publicly-announced strategic partnerships with Google?”
- “Should federal judges be allowed to hold investments of $5 Million and as much as a $25 Million in hedge funds under 28 U.S.C. § 455(d)?”
In Bhagat v. United States Patent and Trademark Office, a pro se case, Bhagat asked the Court to review the following questions:
- “Whether lower courts erred in prejudice against innovation in nutrition arts in failing to uphold the constitutional standard of advancement ordained by Art. I §8 cl. 8, §101, §103, Alice, and Graham in failing to consider claims as a whole, failing to resolve level of skill in the art, failure of others, and unmet critical public health need?”
- “Whether lower courts erred in holding new and useful processes, machine, manufacture, and composition of matter, reciting ‘formulations are so packaged and labeled indicating suitability for consumption that collectively provide a [daily] dosage [based on cohorts] from 1 to 40g of omega-6 fatty acids and from 25mg to 10g of antioxidants, and wherein the antioxidants comprise one or more polyphenols [specific phytochemicals including polyphenols] in the dosage of greater than 5mg; wherein [the intermixture of] omega-6 fatty acid(s) and antioxidant(s) is not any single specific variety of a vegetable, a fruit, a nut, or a seed [almonds],’ unpatentable under §101 over a variety of almonds disregarding the incontrovertible disclaimer, violating Abbott Laboratories v. Sandoz, Inc., 566 F.3d 1282, 1288 (Fed.Cir.2009)), interjecting arbitrary interpretation into the claims contradicting the terms, and failing to construe specification as ‘legal instrument’ defining the invention’s scope ‘by the appended claims’ violating Markman v. Westview Instruments, Inc., 517 U.S. 370, 388 (1996)?”
- “Whether the lower courts committed extreme due process violations, substantially disregarding and dismissing Petitioner’s complaints, causes of action, motions and briefs, and imposing unfair procedure upon pro se Petitioner, violating Snyder v. Com. of Mass, 291 U.S. 97, 116, 137 (1934) [which] mandate[s] ‘the proceedings shall be fair.’”
In Deweese v. United States, another pro se party filed a petition.
Brief in Opposition
In Broadband iTV, Inc. v. Amazon.com, Inc., a patent case, Amazon.com, Inc. filed its brief in opposition to the petition. The petition presented the following question:
- “Whether there is a patent-specific exception to Rule 56, such that courts may grant summary judgment of patent ineligibility despite genuine disputes of material fact regarding whether claim elements are well-understood, routine, or conventional at Alice Step 2.”
Now, in its response brief, Amazon.com asserts that the “Federal Circuit has never adopted . . . any ‘patent-specific exception to Rule 56 that permits summary judgement despite genuine factual disputes.'” Instead, Amazon.com argues, the Federal Circuit “affirmed a summary judgment ruling applying the usual legal standard and determining that there were no such disputes.” According to Amazon.com, Broadband iTV “argues a naked claim of error particular to the evidence in this case,” when “the Court does not review such questions.” Amazon.com further asserts that Broadband iTV “makes no meaningful argument in favor of a grant,” and instead “asks the Court merely to hold the petition pending consideration of Island Intellectual Property LLC v. TD Ameritrade, Inc.,” even though the “practice of summarily affirming judgments without a written opinion . . . is not at issue.” Additionally, according to Amazon.com, “[t]he Court previously denied a petition from this same petitioner, BBiTV, requesting review of the same question presented, and concerning the § 101 invalidity of a patent from the same family.”
Replies
Since our last report two reply briefs supporting petitions have been filed.
Lighting Defense Group LLC v. SnapRays, LLC
In Lighting Defense Group LLC v. SnapRays, LLC, a patent case, Lighting Defense Group filed its reply brief in support of its petition. The petition presented the following question:
- “Whether a defendant subjects itself to personal jurisdiction anywhere a plaintiff operates simply because the defendant knows its out-of-forum other conduct ‘would necessarily affect marketing, sales, and activities’ within the forum, Pet.App.11a—even though the defendant has no contacts with the plaintiff or the forum whatsoever.”
In its response brief, SnapRays argued the case “does not present an issue worthy of this Court’s review.” As for why, SnapRays maintained that the petitioner’s “arguments are based on fundamental mischaracterizations of the factual record and this Court’s precedents.” Specifically, SnapRays argued, the “Federal Circuit’s decision that personal jurisdiction over LDG in Utah was proper comports with” the Supreme Court’s “personal jurisdiction precedents and with the decisions of its sister circuits.” It contended the petitioner “in fact had sufficient contacts with SnapPower and the forum” in the form of “intentional action to invoke a procedure that would automatically curtail SnapPower’s sales, marketing, and the stream of commerce in Utah.” And, SnapRays argued, the petitioner’s “asserted circuit split rests on a mischaracterization of the Federal Circuit’s decision and a similarly distorted reading of lower courts’ caselaw.” In fact, SnapRays maintained, “[t]here is no split.”
Now, in its reply, Lighting Defense Group argues that it “has no contacts with the state of Utah, let alone the non-random, purposeful minimum contacts necessary for the exercise of specific personal jurisdiction.” According to Lighting Defense Group, “[t]he brief in opposition fails to identify any contacts of LDG with the state of Utah,” instead pointing to “conduct outside of Utah, contact merely with a Utah resident, or knowledge that stopping sales on Amazon.com would have effects on that resident.” It contends that “contact with a forum resident alone does not suffice” to establish contacts with the state of Utah. Further, Lighting Defense Group asserts, SnapRays misreads the Federal Circuit’s decision to contend that there is no circuit split and “minimizes any split by describing the issue here at the highest level of granularity possible . . . when the principles and reasoning embraced in the Federal Circuit’s holdings are broad and conflict with numerous decisions.”
ParkerVision, Inc. v. TCL Industries Holdings Co.
In ParkerVision, Inc. v. TCL Industries Holdings Co., a case related to Federal Circuit Rule 36, ParkerVision filed its reply brief in support of its petition. The petition presented the following question:
- “Whether 35 U.S.C. § 144, which requires the Federal Circuit to issue ‘opinion[s]’ in PTAB appeals, is a reason-giving directive that prohibits the Federal Circuit’s practice, under Federal Circuit Rule 36(a), of summarily affirming PTAB decisions without issuing opinions.”
In its response brief, TCL Industries Holdings argued that “this case raises a single issue that already has been rejected by this Court—repeatedly—as unworthy of a grant of certiorari.” According to TCL Industries Holdings, “[i]n just the last seven years, this Court has denied at least ten challenges to the Federal Circuit’s practice of issuing summary affirmances under Rule 36.” It further contended that “ParkerVision erroneously argues throughout its petition that ‘the PTAB invalidated claims in ParkerVision’s patents through inter partes review,’” even though “the PTAB does not and cannot ‘invalidate’ anything.” According to TCL Industries Holdings, the “PTAB simply reconsiders whether an earlier grant of a patent by the PTO was correct in view of additional information,” and “ParkerVision’s collateral attack on inter partes review is irrelevant to the narrow question before the Court.”
Now, in its reply, ParkerVision argues that TCL Industries Holdings “concede[s] the question presented” by not disputing that “§ 144 of the Patent Act requires the Federal Circuit to decide an appeal from the Patent Trial and Appeal Board (PTAB) by issuing an ‘opinion.'” ParkerVision further asserts that TCL Industries Holdings does not dispute “that when the Federal Circuit affirms a PTAB decision under Rule 36—saying only ‘affirmed’—the court has not rendered an ‘opinion’ and has thus violated § 144.” According to ParkerVision, “[s]ection 144 means what it says” and TCL Industries Holdings’ “statutory concession, coupled with the mounting criticism of Rule 36’s deployment in PTAB appeals, illustrates the need for review.” ParkerVision argues that the “PTAB deck is already stacked against solo inventors . . . , and Rule 36, through which the Federal Circuit affirms PTAB invalidations without explaining why, exacerbates the imbalance of power.”
Amicus Briefs
Since our last update, two new amicus briefs in support of the petitioner were filed in Audio Evolution Diagnostics, Inc. v. United States, a patent case presenting the following questions:
- “Whether this Court should clarify its Alice and Mayo rulings at steps one and two by focusing on the language of 35 U.S.C. § 101 itself and differentiate patent-eligibility determinations under § 101 from fact-based well-understood, routine, and conventional questions of novelty, obviousness, and enablement under §§ 102, 103, and 112.”
- “Whether this Court should find that the Federal Circuit is abandoning its role of articulating patent law precedent and bringing uniformity to patent law with its overuse of Federal Circuit Rule 36 to summarily affirm decisions of lower tribunals involving unsettled and complex issues of patent law.”
Island Intellectual Property LLC filed an amicus brief. In its brief, it argues that, “[w]hile brevity in certain circumstances may be a virtue, one-word Rule 36 Judgments are not sufficient for the Federal Circuit to carry out its duties as an appellate court, let alone to develop the law as the sole Court of Appeals for all appeals of cases involving patent law.” According to the brief, “[a]n answer is not an explanation.” It further asserts that “the large number of earlier petitions (and continuing flow of pending petitions) evidence the extensiveness of the problem, and the continuing need for this Court’s supervision.”
Harris Brumfield, Trustee for Ascent Trust, also filed an amicus brief. In this brief, he asserts that the “text of § 101 prohibits inventions if they are not new and useful,” while “the judicially created exceptions embodied in the Alice/Mayo framework, on the other hand, impose other limitations for patent eligibility.” The brief argues that, “[i]n addition to not being in the text of § 101, these judge-made limitations actually conflict with the statute’s plain language and legislative history, while also conflating eligibility with substantive patentability criteria under §§ 102, 103, and 112.” The brief further asserts that the “failure of the Federal Circuit to articulate a rationale for its decision . . . deprives property owners of an ability to seek meaningful review,” while also undercutting “the Federal Circuit’s mandate to create uniformity in patent law.”
Denials
Since our last update, the Supreme Court has denied certiorari in the following cases: