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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 granted petitions, the Supreme Court recently heard oral argument and issued opinions, respectively, in two cases decided by the Federal Circuit. With respect to pending petitions, three new petitions have been filed in two patent cases and a pro se case, a brief in opposition and a reply brief was filed in case raising a question related to certification of questions of law, and another reply brief was filed in support of a petition in a patent case. Finally, since our last update the Court has denied two petitions, one raising questions related to recusal and the other raising a question related to patent infringement. Here are the details.

Granted Cases

Since our last update, in two cases decided by the Federal Circuit the Supreme Court heard oral argument or issued opinions.

Oral Argument

In late April, the Supreme Court heard oral argument in Soto v. United States. The Court granted review to consider whether a statutory provision governing Combat-Related Special Compensation, 10 U.S.C. § 1413a, provides a settlement mechanism that displaces the default procedures and limitations set forth in the Barring Act. According to the Federal Circuit, “the Barring Act applies to settlement claims” regarding Combat-Related Special Compensation. As for why, it indicated “the CRSC statute does not explicitly provide its own settlement mechanism.” It then held that “the six-year statute of limitations contained in the Barring Act applies to CRSC settlement claims.” Soto challenges these findings by arguing that the Barring Act does not apply to CRSC settlement claims. We will post our argument recap soon.

New Opinions

Also in late April, the Supreme Court reached a decision in Feliciano v. Department of Transportation. In this case, which was originally decided by the Merit Systems Protection Board, the Court granted certiorari to determine 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.” The Federal Circuit had held that differential pay is required only if the employee’s duty is directly connected to the national emergency. The Supreme Court, in an opinion authored by Justice Gorsuch, reversed:

In the end, we are persuaded that the statutory language means what its terms most naturally suggest: A federal civilian employee called to active duty pursuant to “any other provision of law . . . during a national emergency” is entitled to differential pay without having to prove that his service was substantively connected in some particular way to some particular emergency. Because the Federal Circuit held otherwise, its judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.

Justices Thomas dissented, joined by Justices Alito, Kagan, and Jackson.

We will post an opinion summary soon.

Petition Cases

New Petition

Since our last update new petitions were filed in three cases.

In NexStep Inc. v. Comcast Cable Communications, LLC, in a patent case, NexStep filed a petition asking the Court to review the following question:

  • “Whether a patentee must in every case present ‘particularized testimony and linking argument’ to establish infringement under the doctrine of equivalents.”

In Purdue Pharma L.P. v. Accord Healthcare, Inc., another patent case, Purdue Pharma filed a petition asking the Court to review the following question:

  • “Whether, as this Court has held, the objective indicia of non-obviousness should be analyzed flexibly to combat hindsight bias or instead subject to the Federal Circuit’s rigid rules restricting the inquiry.”

In Carlborg v. United States, a pro se petitioner asked the Court to review the following questions:

  1. “Whether petitioner was deprived of the property interest right in his military retirement under the Due Process Clause of the Fifth Amendment when the court of appeals, without comment or analysis, did not follow stare decisis and apply binding precedent when affirming the trial court decision.”
  2. “Whether petitioner was deprived of the property interest right in his military retirement under the Due Process Clause of the Fifth Amendment when the court of appeals did not consider petitioner’s arguments as the court’s decisional path is not found in its opinion.”

Brief in Opposition

Since our last update, the respondent in Atturo Tire Corp. v. Toyo Tire Corp. filed its brief in opposition. The petition presented the following question:

“Should this Court certify to the Illinois Supreme Court whether Illinois’ absolute litigation privilege bars Atturo’s claims of tortious interference with business expectancy, unfair competition, and unjust enrichment, and, if the Illinois Supreme Court rules it does not, remand for proceedings consistent with the Illinois opinion?”

In the brief in opposition, Toyo Tire argues the petition should be denied. First, it argues, “the principle, that privileged conduct is . . . protected from alternative tort theories, is settled in Illinois and further review is not required.” Moreover, Toyo Tire suggests, since “both the district court and the Federal Circuit held that Toyo’s challenged conduct is pertinent/privileged . . . the issue of ‘pertinence’ and whether the ‘privilege applies’ to Toyo’s conduct is conclusively resolved.” Furthermore, it says, “prolonging this case through certiorari and state court referral is unnecessary and against the public interest.” Toyo Tire also argues “the petition relies on so many factual arguments that it is difficult to imagine what legal principle this Court could appropriately certify for state court review.” Finally, according to Toyo Tire, “this petition is only ‘outcome determinative’ if that outcome is the same result as denial of certiorari.”

Reply

Reply briefs in support of petitions were filed in two cases.

In the same case just discussed, Atturo Tire Corp. v. Toyo Tire Corp., the petitioner, Atturo Tire, filed its reply in support of its petition. In it, Atturo Tire disagrees with the assertion “that whether Illinois’ absolute litigation privilege applies to claims of tortious interference with business expectancy, unfair competition, and unjust enrichment presents a ‘settled’ question of Illinois law.” Atturo Tire maintains the Federal Circuit and Toyo Tire failed “to acknowledge cases . . . that caution against federal courts extending a doctrine of Illinois law beyond where it has previously been applied in the absence of binding Illinois precedent.” Furthermore, “unlike the Federal Circuit, which could only ‘predict’ what the Illinois Supreme Court would say, this Court need not ‘predict’ anything” because, Atturo Tire argues, “under Illinois Supreme Court Rule 20(a) it can just ask.” In the end, Atturo Tire urges the Court to grant the petition because “whether a jury’s hard work should be entirely undone by a ‘prediction’ when an Illinois rule allows the Court to seek a conclusive answer is a question that merits this Court’s consideration.”

The other case with a new reply brief is Converter Manufacturing, LLC v. Tekni-Plex, Inc., a patent case. The petition presented the following questions:

  1. “Whether the patent challenger always has the burden of proving that the disclosures in an asserted prior art patent or printed publication are enabling of the claimed subject matter under Sections 102 and 103 of the Patent Act.”
  2. “Whether the standard for proving a prior art patent or printed publication enables claimed subject matter under Sections 102 and 103 of the Patent Act is the one set forth in this Court’s holding in Seymour v. Osbourn, 11 Wall. 516, 555 (1870).”
  3. “Whether this Court’s Loper Bright Enterprises v. Raimondo decision prohibits the Federal Circuit from deferring to the USPTO’s interpretation of the law of prior art enablement by silently adopting that interpretation using Fed. R. App. P. 36.”

According to Converter Manufacturing, “the factual background illustrates the unjust results of failure to follow this Court’s Seymour precedent.” Moreover, it argues, it “did not waive any question presented in the petition.” Converter Manufacturing also argues that “no legitimate policy consideration supports maintaining” the Federal Circuit’s “erroneous prior art enablement law.” Finally, it argues, “Loper Bright applies to” the Federal Circuit’s “approval of agency re-interpretation of the law of prior art enablement under sections 102 and 103 of the Patent Act.”

Denials

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