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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, the Supreme Court heard oral argument in the case challenging President Trump’s tariffs. As for pending petitions, new petitions were filed in a patent case, a government contract case, and a pro se case; briefs in opposition were filed in a patent case and a takings case; waivers of the right to respond to petitions were filed in a Rule 36 case and two pro se cases; five amicus briefs were filed in a government contract case; and three petitions were denied, one in a Rule 36 case and two in pro se cases. Here are the details.

Granted Petitions

Oral arguments in Trump v. V.O.S. Selections, Inc. were heard at the Supreme Court last week. We will post an argument recap soon.

Pending Petitions

New Petitions

Since our last update, three new petitions were filed in cases decided by the Federal Circuit.

In SurfCast, Inc. v. Microsoft Corp., a patent case, Surfcast filed a petition presenting the following question:

  • “Whether 35 U.S.C. § 144, which requires the Federal Circuit to issue ‘opinion[s]’ in PTAB appeals, is a reasoning giving directive that prohibits the Federal Circuit’s practice, under Federal Circuit Rule 36(a), of summarily affirming PTAB decisions without issuing opinions.”

In Sheffield Korte Joint Venture v. Secretary of the Army, a government contract case, Sheffield Korte Joint Venture filed a petition presenting the following questions:

  1. “Does the government impliedly warrant under Spearin that a government-furnished concept design for a design-build project is free from defects?”
  2. “If the Spearin implied warranty applies, was it breached when a design feature in the government-furnished design that the government accepted and upon which the contractor relied during bidding turned out to be erroneous?”

In Malik v. Collins, a pro se case, Rashid El Malik filed a petition presenting the following questions:

  1. “Whether a catastrophically disabled veteran facing imminent, life threatening harm is entitled to mandamus relief under Martin v. O’Rourke when a government agency has unreasonably delayed implementation of a final Board grant for over 1,185 days, no appellate remedy exists, and all Martin factors for unreasonable delay are overwhelmingly satisfied.”
  2. “Whether the Federal Circuit violated its own precedent in Cushman v. Shinseki by permitting the Veterans Affairs agency to maintain in a veteran’s file a tainted document-containing demonstrably false statements used to deny disability benefits-which the agency has effectively admitted is false, but refuses to remove absent a court order, thereby depriving the veteran of due process.”

Briefs in Opposition

Since our last update, two briefs in opposition were filed, one in a patent case and one in a takings case.

MSN Pharmaceuticals, Inc. v. Novartis Pharmaceuticals Corp

In this patent case, Novartis Pharmaceuticals Corporation filed a brief in opposition to the petition.

The petition 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.”

Now, in its brief, Novartis argues the petition “seeks review of questions that are not presented here and not the subject of any legal conflict.” According to Novartis, this “Court long ago resolved the issues actually presented here, and the court of appeals’ decision is correct under that settled precedent.” Novartis goes on to say the Court’s “review is unwarranted for at least four reasons.” First, Novartis argues, “as the court of appeals expressly concluded, the patent at issue here does not claim after-arising technology.” Secondly, it contends, “even if this case involved that question, there is no conflict about the answer.” Thirdly, it argues, the Court “long ago resolved that those who include an original invention within their own product cannot escape liability for infringement of the original patent, or invalidate the original patent, by arguing that their infringement involves a later improvement.” Fourth, it says, “even if there were unresolved issues about after-arising technology and even if this case implicated those issues, this would be an exceptionally poor vehicle for addressing them because of MSN’s own litigation choices.”

City of Fresno v. United States

In this takings case, the government filed a brief in opposition to the petition. The petition asks the Court to review the following questions:

  1. “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.”
  2. “Whether Reclamation’s refusal to release available water for growers’ use is a compensable taking under the Fifth Amendment.”

In its brief, the government argues the Federal Circuit “correctly affirmed the dismissal of petitioners’ takings claim on the ground that California law did not grant petitioners a property interest in water that the United States delivered to other parties pursuant to contracts.” According the government, the Federal Circuit’s “takings ruling depends on issues of state law, and petitioners do not contend that the decision below conflicts with any decision of another federal court of appeals or a state court of last resort on an important federal question.” The government says the petitioners’ “lack of contract rights under state law also complicates the presentation of their intertwined takings claim.”

Waivers of the Right to Respond

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

Amicus briefs

Since our last update, five amicus briefs were filed in Percipient.ai, Inc. v. United States, a government contract case. The petition asked 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?”

All five of the amicus briefs support the petitioner:

  • An amicus brief filed by Poplicus Inc. argues the Supreme Court “should grant Percipient’s petition for certiorari and hold that commercial providers can enforce the Commercial Item Preference Law via . . . bid protests for procurements administered by prime contractors on behalf of the government.”
  • An amicus brief filed by members of Congress contends the Supreme Court “should grant Percipient.ai’s petition to restore the interpretation Congress intended—one that preserves robust judicial review of procurement-law violations and the accountability Congress built into the federal acquisition system.”
  • An amicus brief filed by Palantir Technologies Inc. argues the Federal Circuit’s decision “will deprive the national security community of critical tools necessary to counter adversaries; stifle innovation in the defense technology sector; and result in delays and cost overruns in defense programs.”
  • An amicus brief filed by Map Large, Inc. contends the Federal Circuit’s en banc decision “neutralizes” the Federal Acquisition Streamlining Act’s mandate, “which requires agencies to prioritize commercial products at all stages of procurement.” According to Map Large, this “error frustrates the core purpose of FASA and provides a roadmap for agencies and prime contractors to bypass these mandates, locking the government into costly, inefficient, and rapidly obsolete custom-development projects.”
  • An amicus brief filed by the Foundation for American Innovation argues this case “carries existential consequences for commercial defense contractors and presents a clean legal question of statutory interpretation that this Court can resolve within established standing doctrines.”

Denied Petitions

Since our last update, the Supreme Court denied three petitions in cases decided by the Federal Circuit: