Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. Since our last update, a new amicus brief was filed in the case addressing President Trump’s tariffs. Regarding pending petitions, since our last update a petition was filed in a government contract case, a waiver of the right to respond was filed in a pro se case, five amicus briefs were filed in a patent case, one amicus brief was filed in a takings case, and a petition in a pro se case was denied. Here are the details.
Granted Petitions
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. Since our last update, one new amicus brief has been filed. It argues in favor of the Federal Circuit’s judgment.
Pending Petitions
New Petition
Since our last update, Percipient.ai, Inc. filed a petition in Percipient.ai, Inc. v. United States, a government contract case. The petition asks the Court to review the following question:
- “Did the en banc Federal Circuit err in holding that a person must meet the requirements for challenging a solicitation or contract award under the first two prongs of 28 U.S.C. § 1491(b)(1) to qualify as an ‘interested party’ who can challenge violations under the broader third prong?”
Waiver of Right to Respond
Since our last update, Ooyala, Inc. filed a waiver of the right to respond in Wakefield v. Blackboard, Inc., a pro se case.
Amicus Briefs
Since our last update, five new amicus briefs were filed in a patent case and one new amicus brief was filed in a takings case.
MSN Pharmaceuticals, Inc. v. Novartis Pharmaceuticals Corp
The petition in this patent case asked the Court to consider the following question:
- “Whether, in a patent-infringement suit, a court may consider after-arising technology to hold that the patent is invalid under § 112(a) of the Patent Act.”
Since our last update, five amicus briefs have been filed. All five support MSN Pharmaceuticals:
- The amicus brief filed by Biophore Pharma Inc argues the Supreme Court “should grant the Petition to clarify the case law that after-arising technology, if used for infringement purposes, then must also be considered for invalidity purposes.”
- The amicus brief filed by Intellectual Property Law Professors argues “[t]he Court’s intervention is necessary to clarify whether, and to what extent, patent claims should cover after-arising technologies for both validity and infringement.”
- The amicus brief filed by the Public Interest Patent Law Institute argues that, “under the Federal Circuit’s decision, patent owners may exclude others from making, using, and developing technology that the patent owner never invented or disclosed to the public.”
- The amicus brief filed by Sigmapharm Laboratories, LLC argues the “Federal Circuit’s precedents addressing Section 112(a)’s requirements in the case of after-arising technology are inconsistent and confusing.”
- The amicus brief filed by Professors Jonathan Masur and Lisa Ouellette argues the “Federal Circuit has proven unable to develop a coherent approach to addressing the impact of after-arising technology on section 112’s disclosure requirements” and “the only way to clear up the jumble the Federal Circuit has created in this crucial area of patent law is for this Court to intervene.”
City of Fresno v. United States
The petition in this takings case asks the Court to review the following questions:
- “Whether in accordance with Section 8 of the Reclamation Act, 28 U.S.C. § 372, the beneficial users of Reclamation Project irrigation water have compensable water-property rights under the Fifth Amendment.”
- “Whether Reclamation’s refusal to release available water for growers’ use is a compensable taking under the Fifth Amendment.”
Since our last update, an amicus brief was filed by the Mountain States Legal Foundation in support of the City of Fresno. In its brief, the Mountain States Legal Foundation states that “[c]ontracts govern delivery and repayment; they do not extinguish the underlying property rights defined by Section 8.” The Foundation argues the “Federal Circuit’s decision eviscerates this framework by denying the growers a compensable property interest.” According to the Foundation, moreover, this “ruling endorses an alarming pattern of federal agencies attempting to operate outside the rule of law.”
Denial
Since our last update, the Supreme Court denied the petition in Khan v. Merit Medical Systems, Inc., a pro se case.