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Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. Since our last update, there is no new activity in granted cases. With respect to petitions, four new petitions have been filed. Two petitions present questions related to Federal Circuit Rule 36, while two were filed in pro se cases. In addition, three new briefs in opposition and three waivers of the right to respond to petitions were filed. Here are the details.

Granted Petitions

There is no new activity in granted cases since our last update. As a reminder, the only case pending at the Supreme Court that was decided by the Federal Circuit is Trump v. V.O.S. Selections, Inc.

Pending Petitions

New Petitions

Since our last update, four new petitions have been filed in the following cases decided by the Federal Circuit.

In CPC Patent Technologies Pty Ltd. v. Apple Inc., CPC Patent Technologies filed a petition presenting the following question:

  • “Whether Federal Circuit Rule 36, which allows the United States Court of Appeals for the Federal Circuit to issue an affirmance without opinion when reviewing a decision of the Patent Trial and Appeal Board of the United States Patent and Trademark Office (‘PTO’) violates the requirements of 35 U.S.C. § 144, which requires that the Federal Circuit issue an ‘opinion’ when reviewing a PTO decision.”

In Farrington v. Department of Transportation, Kim Farrington filed a petition presenting the following questions:

  1. “Whether Federal Circuit Rule 36 affirmances without opinion violate the Fifth Amendment guarantee of procedural due process by denying aggrieved federal employees meaningful judicial review of agency statutory interpretations.”
  2. “Whether Federal Circuit Rule 36 affirmances without opinion violate the Fifth Amendment guarantee of procedural due process by denying aggrieved federal employees meaningful judicial review of agency statutory interpretations.”
  3. “Whether the addition of the word ‘normal’ to ‘course of duties of an employee’ in 5 U.S.C. § 2302(f)(2) modifies the scope of such duties, within the plain text meaning of the statute.”

In Wakefield v. Blackboard, Inc., a pro se case, Franz Wakefield filed a petition presenting the following questions:

  1. “Whether, to obtain Rule 60(b) relief, a movant must be required to make a ‘non-empty exercise’ (meritorious-claim or defense) threshold showing, and if so, how that showing interacts with a structural-defect claim where the core injury is denial of a fair tribunal and whether an appellate panel that includes a judge later suspended for disability, satisfies 28 U.S.C. § 46(b)’s three-judge quorum requirement and the Due Process Clause, or whether such participation creates a structural defect requiring relief under Rule 60(b)(6).”
  2. “Whether Rule 60(b)(6) requires relief where new official facts arose only after judgment and mandate and reveal a post-judgment structural due process defect in the integrity of the tribunal, and whether the equitable purpose of Rule 60(b) requires a uniform national standard, rather than divergent circuit approaches, when the defect alleged is structural—such as violation of 28 U.S.C. § 46(b)’s requirement that appellate cases be heard by a panel of three competent judges.”
  3. “Whether the ‘reasonable time’ under Rule 60(b)(6) begins at public initiation of an investigation into a judge’s capacity, or at the issuance of a definitive disciplinary order (e.g., suspension) that removes speculation and ripens the due process claim, and whether the courts below erred in refusing Rule 60(b)(6) relief as ‘untimely’ without applying the case specific analysis required by this Court’s precedents.”

In Davie ex rel. Davie v. Merit Systems Protection Board, a pro se party filed a petition.

Briefs in Opposition

Since our last update, three new briefs in opposition have been filed in related cases decided by the Federal Circuit, Gesture Technology Partners, LLC v. Apple Inc. and Gesture Technology Partners, LLC v. Unified Patents, LLC.

In both cases, Gesture Technology Partners asked the Court to consider the same question:

  • “Whether the PTO has the authority to conduct administrative adjudications regarding the validity of expired patents, and thereby extinguish private property rights through a non-Article III forum without a jury, even though the patent owner no longer possesses the right to exclude the public from its invention.”

Three briefs in opposition were filed.

In Gesture Technology Partners, LLC v. Apple Inc., Apple and Google filed a brief in opposition arguing “[t]he petition seeks review of a question this Court already resolved and on which no Federal Circuit judge has since expressed disagreement.” According to Apple and Google, the petition “fails to demonstrate any error in the decision below, much less one that warrants this Court’s intervention.” Also, they say, because the petition “merely raises a challenge foreclosed by Oil States—without asking this Court to overrule that precedent—denial is even more appropriate.” In particular, Apple and Google continue, “[a]lthough Gesture tries to suggest that this case presents major questions of executive-agency authority, in fact the only question of executive authority it presents was resolved in Oil States.”

The government also filed a brief in opposition in this case. After pointing out that the petitioner’s argument is “that inter partes review and ex parte reexamination of an expired patent violate Article III,” the government says the Federal Circuit “correctly rejected that contention.” According to the government, the holding “is inconsistent with” the Supreme Court’s “decision in Oil States . . . and constitutional text and history.” The government further argues that the petitioner’s question presented “has limited practical significance, since the USPTO appears to have rarely used inter partes review or ex parte reexamination to reconsider the validity of expired patents.”  Accordingly, it says, “[f]urther review is not warranted.” Moreover, the government contends the petitioner is incorrect in its position that “administrative reconsideration of an expired patent involves only ‘private rights’ because an expired patent ‘no longer confers the public franchise.’” And, the government argues, the petitioner’s “analogies to ‘other intellectual property rights’ . . . do not support its constitutional argument here.”

In Gesture Technology Partners, LLC v. Unified Patents, LLC, Apple and Google filed a similar brief in opposition. In it, they argue that Gesture’s petitions in both cases “seek review of a question this Court already resolved, on which no Federal Circuit judge has since expressed disagreement, and fail to demonstrate any error by the court of appeals, much less one that warrants this Court’s intervention.” For both cases, they say, “the Federal Circuit faithfully applied . . . Oil States.”

Waivers of Right to Respond

Since our last update, waivers of the right to respond to petitions have been filed in the following cases: