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Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. There are currently no pending cases previously decided by the Federal Circuit. As for pending petitions, since our last update, three new petitions were filed in a patent case and two pro se cases; three waivers of the right to respond to a petition was filed in a case originally decided by the Merit Systems Protection Board and two pro se cases; a reply brief in support of a petition was filed in a veterans case; and seven amicus briefs were filed in one patent case. Here are the details.

New Petitions

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

Kahoot! AS v. Interstellar Inc.

In this case, Kahoot! filed a petition asking the Court to review the following questions:

  1. “Whether the PTO lacks statutory authority to deny inter partes review institution based on ‘settled expectations’ premised on a patent’s age where Congress prescribed express timing limits for inter partes review based on a patent’s minimum age (which is tied to the expiration of the statutory period for seeking post-grant review, a separate type of patent validity challenge) but imposed no maximum patent age bar.”
  2. “Whether 35 U.S.C. § 314(d) bars judicial review, even by way of mandamus, of whether the PTO exceeded its statutory authority when denying inter partes review institution on grounds that are contrary to the statute.”

Hood v. Merit Systems Protection Board

In this pro se case, Hood filed a petition asking the Court to review one question.

Thorogood v. Department of the Navy

In this pro se case, Thorogood filed a petition asking the Court to review one question.

Waiver of the Right to Respond

Since our last update, three waivers of the right to respond to petitions were filed:

Reply Brief

Since our last update, a reply brief in support of a petition was filed in Steele v. Collins, a veterans case. As a reminder, the petition in this case presented the following question:

  • “Under the statutory and regulatory notice requirements governing VA decisions since 1990, is the VA permitted to retroactively deem a claim ‘implicitly denied’ when the agency never issued a notice explicitly setting forth the claim at issue or the reason for its denial?”

In its brief in opposition, the government contended “[r]eview is particularly unwarranted because the 2017 amendments to Section 5104(b) [of Title 38], which apply to every veterans’ benefits decision rendered since February 19, 2019, replaced the legal framework that the court of appeals applied in this case.” It further argues that the “VA’s 1991 decision and letter . . . were sufficient to give petitioner notice of the denial of his claim and the reasons for that denial.”

Now, in his reply brief, Steele highlights how “the only notice the VA sent to Mr. Steele in 1991 made no mention of any decision about his headaches.” He also highlights that, “[s]ince the decision below, the Federal Circuit held in [a relevant case] that implicit denials are incompatible with Congress’s statutory notice requirements, but only with respect to claims pending after the 2019 effective date of the AMA’s amendment to § 5104.”

Amicus Briefs

Since our last update, seven amicus briefs were filed in Intel Corp. v. Squires, a patent case. As a reminder, the question presented in this case is “whether 35 U.S.C. § 314(d), which bars judicial review of ‘[t]he determination . . . whether to institute an inter partes review,’ applies even when no institution decision is challenged to preclude review of PTO rules that set standards governing institution decisions, particularly when those rules are based on a misinterpretation of § 314(a) to supposedly confer unlimited discretion on the Director to deny institution for any reason.”

The seven amicus briefs all support review and were filed by: