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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 has been no new activity at the Supreme Court in the only pending case decided by the Federal Circuit. As for pending petitions, new petitions were filed in a case addressing jurisdiction, a veterans case, and a pro se case; a waiver of the right to respond to a petition was filed in the case addressing jurisdiction; a brief in opposition was filed in a trademark case; a reply brief was filed in a patent case; and two amicus briefs were filed in another veterans case. Finally, the Court denied three petitions, one in a patent case, one in a trademark case, and on in a case addressing Federal Circuit Rule 36. Here are the details.

Granted Petitions

Since our last update, there has been no new activity at the Supreme Court in the only pending case decided by the Federal Circuit, Trump v. V.O.S. Selections, Inc.

Pending Petitions

New Petitions

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

In Lowe v. ShieldMark, Inc., a case addressing jurisdiction, Clifford A. Lowe filed a petition asking the Court to review the following questions:

  1. “When a district court is presented with a motion for relief from judgment under Federal Rule of Civil Procedure 60(b), does it abuse its discretion by refusing to correct a sanctions award expressly based on facts and law the appellate court exposed to have been in error?”
  2. “Does a district court’s sanctions award violate the holding of this Court in Goodyear Tire & Rubber Co. v. Haeger, 581 U.S. 101 (2017) as being punitive when it is not causally connected but only temporally linked to the misconduct as expressly identified by the district court?”
  3. “Is the holding of this Court in Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94 (1998), that a court has no authority to proceed after determining it lacks subject matter jurisdiction, weakened when an appellate court, after first finding the facts and law on which a sanctions award is expressly based (i.e., continuing litigation after relinquishing standing) to be in error, declines to hear whether the district court abuses its discretion in refusing to reconsider that sanctions award when confronted with those errors through a motion for relief from judgment under Rule 60(b) of the Federal Rules of Civil Procedure?”

In Siples v. Collins, a veterans case, Clinton Siples filed a petition asking the Court to review the following question: 

  • “To establish ‘clear and unmistakable error’ based on legal error, must a veteran show that there was an error of law at the time of the challenged decision which undebatably altered the outcome of the benefits decision, as the regulatory text provides, or must a veteran also show that the meaning of the law itself was undebatable, as the Federal Circuit held?”

In Lucas v. Office of Personnel Management, a pro se case, Cambra L. Lucas filed a petition asking the Court to review the following questions:

  1. “Whether the Merit Systems Protection Board (MSPB) violated its statutory jurisdiction and due process obligations by failing to provide Petitioner with adequate notice of her right to challenge the validity of federal employee insurance premium overpayments in federal court, as required by the Due Process Clause and Supreme Court precedent.”
  2. “Whether the Federal Circuit erred in affirming MSPB’s dismissal of Petitioner’s claims, thereby foreclosing judicial review of agency actions affecting substantial property interests, contrary to Supreme Court authority and the strong presumption in favor of judicial review of administrative action.”
  3. “Whether the Merit Systems Protection Board and the Federal Circuit Court of Appeals erred by refusing to address, or refer to the appropriate forum, Ms. Lucas’s colorable statute of limitations defense to the Office of Personnel Management’s overpayment recovery efforts—despite clear Supreme Court precedent that statutes of limitations serve as jurisdictional bars to untimely government claims—and whether such refusal violates the Board’s and the Court’s obligations to act in accordance with law and afford individuals a meaningful opportunity to assert their rights”
  4. “Whether the Merit Systems Protection Board and the Federal Circuit Court of Appeals violated their statutory and constitutional obligations by failing to consider and apply the Board’s own controlling precedent in Arthur I. Martin v. Office of Personnel Management, 97 M.S.P.R. 303 (2004)—which requires recalculation of alleged overpayments subject to a 10-year limitation and reconsideration of waiver requests—when adjudicating Petitioner Cambra L. Lucas’s challenge to OPM’s overpayment recovery efforts, thereby depriving her of the benefit of established Board practice, correct jurisdictional analysis, and a meaningful opportunity to assert her rights, in contravention of the Due Process Clause and Supreme Court authority.”

Waiver of the Right to Respond

In one of the cases discussed above, Lowe v. ShieldMark, Inc., Shieldmark filed a waiver of the right to respond to the petition.

Brief in Opposition

Since our last update, the government filed its brief in opposition in Vetements Group AG v. Stewart, a trademark case. The petition asked the Court to review the following questions:

  1. “Whether protection of a non-English mark is controlled by consumer perception of the mark taken at face value or controlled by its English translation.”
  2. ”What is the proper test for determining genericness or descriptiveness of a non-English mark.”

Now, in its brief, the government argues this is a “textbook case” for applying “the doctrine of foreign equivalents” to the “proposed ‘Vetements’ marks.” The government maintains the Federal Circuit’s “decision does not conflict with any decision of this Court or another court of appeals.” And it says the Court should “take the same course here” as it did when it “recently denied a petition for a writ of certiorari that presented related issues.”

Reply Brief

Since our last update, MSN Pharmaceuticals filed a reply brief in MSN Pharmaceuticals, Inc. v. Novartis Pharmaceuticals Corp., a patent case. The petition presented 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.”

In its brief in opposition to the petition, Novartis argued 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 went on to say the Court’s “review is unwarranted for at least four reasons.” First, Novartis argued, “as the court of appeals expressly concluded, the patent at issue here does not claim after-arising technology.” Secondly, it contended, “even if this case involved that question, there is no conflict about the answer.” Thirdly, it argued, 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 said, “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.”

Now in its reply brief, MSN Pharmaceuticals contends “Novartis stands alone” when it argues there is “no conflict.” MSN Pharmaceuticals maintains “[s]cholars, practitioners, think industry groups, and other pharmaceutical companies have all concluded that the Federal Circuit’s after-arising technology decisions ‘contradict[]’ one another, thereby ‘leading patentees, accused infringers, innovators, and counsel to a different conclusion depending on which line is followed.'” Moreover, MSN Pharmaceuticals argues, the “after-arising complex constituted not an improvement but a fundamentally new product, the equivalent of transforming a few stray letters into words and sentences.” It contends this “case is a ‘clean opportunity for this Court to clear up’ a longstanding and significant conflict in patent law.”

Amicus Briefs

Since our last update, two new amicus briefs have been filed in Champagne v. Collins, a veterans case. The petition asks the Court to review the following question:

  • “Whether the VA must process a disability claim as a claim for both pension and compensation if the veteran has a possible entitlement to both benefits and award ‘the greater’ benefit available as provided by 38 C.F.R. § 3.151(a), or whether the VA instead has discretion to disregard a potentially meritorious compensation claim and therefore afford the lesser benefit available to the veteran.”

Both amicus briefs support the petitioner and were filed by the following parties:

Denials

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