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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 cases pending before the Supreme Court that were previously decided by the Federal Circuit. As for petitions, since our last update, five new petitions were filed in a patent case, a case arising under the Tucker Act, a case originally arising under the Indian Tucker Act, and two pro se cases; two waivers of the right to respond to petitions were filed in a case involving copyright and government contract claims and a pro se case; two briefs in opposition were filed in patent cases; a reply brief in support of a petition was filed in a patent case; amicus briefs were filed in two patent cases; and the Court denied five petitions. Here are the details.

New Petitions

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

Oasis Tooling, Inc. v. Siemens Industry Software Inc.

In this patent case, Oasis Tooling filed a petition asking the Court to review the following question:

  • “Whether a specific, multi-step computer-implemented process is patent eligible under 35 U.S.C. § 101 when it performs a task in a way fundamentally different from how people previously did it—or whether such a claim is necessarily directed to an unpatentable abstract idea merely because a person could perform a similar task through a different and inferior mental process.”

Blue Cross & Blue Shield of Kansas City v. United States

In this case arising under the Tucker Act, Blue Cross filed a petition asking the Court to review the following question:

  • “The question presented is whether this Court should overrule John R. Sand & Gravel Co. v. United States and hold that Section 2501 is nonjurisdictional and subject to equitable tolling.”

Jones v. United States

In this case arising under the Indian Tucker Act, Jones filed a petition asking the Court to review the following questions:

  1. “Does the Fourth Amendment to the United States Constitution permit an officer at a homicide crime scene to take control of all substantial evidence (here, including one of the two handguns fired at the scene), or is the evidence that may be seized limited to evidence against a person for whom the officer has established probable cause of commission of a crime?”
  2. “Does a person who comes to a closed shooting homicide investigation scene and takes possession of one of the two guns at that scene have a reasonable expectation of privacy barring the investigator from taking that gun?”

Pena v. Collins

In this pro se case, Pena filed a petition asking the Court to review three questions.

Kamdem-Ouaffo v. Colgate Palmolive Co.

In this pro se case, Kamdem-Ouaffo filed a petition asking the Court to review three questions.

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:

Briefs in Opposition

Since our last update, briefs in opposition were filed in two patent cases.

Intel Corp. v. Squires

As a reminder, the petition in this case presented the following question:

  • “The question presented 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.”

Now, in its brief in opposition, the government highlights that “the AIA ‘uses no language commanding institution’ in any circumstance.” As a result, the government says, a “court that attempted to review the Director’s guidance . . . ‘would have no meaningful standard against which to judge the [Director’s] exercise of discretion.'” Furthermore, the government claims, “review is not warranted because there are substantial questions about petitioners’ Article III standing.”

Kahoot! AS v. Interstellar Inc.

As a reminder, the petition in this case presented 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.”

Now, in its brief in opposition, the government asserts the “petitioner does not satisfy any of the three prerequisites to mandamus relief,” and the “petition for a writ of certiorari does not acknowledge the demanding mandamus standard.” Furthermore, the government claims, the “[p]etitioner identifies no statutory provision, and none exists, that expressly bars consideration” of settled expectations.

Reply Brief

Since our last update, a reply brief in support of a petition was filed in Tesla, Inc. v. Granite Vehicle Ventures LLC, a patent case. As a reminder, the petition in this case presented the following question:

  • “Whether courts have power to review a PTO decision denying inter partes review on grounds that are contrary to statute, like an extra-statutory restriction based on time to trial in separate litigation.”

In its brief in opposition, the government claimed the Federal Circuit “correctly held that petitioner was not entitled to mandamus relief,” because the “petitioner does not satisfy any of the three prerequisites.” Furthermore, the government argued, the Leahy-Smith America Invents Act “places no constraints on the USPTO’s discretion to decide whether a review should be instituted.”

Now, in its reply brief, Tesla argues “Congress did not grant the PTO absolute, unreviewable power to invent new IPR restrictions.” Moreover, Tesla claims, the “AIA limits the PTO’s discretion over IPR institution,” because “Congress prescribed a reticulated set of IPR institution criteria for the agency to consider.”

Amicus Briefs

Since our last update, amicus briefs were filed in two different patent cases.

Centripetal Networks, LLC v. Cisco Systems, Inc.

As a reminder, the question presented in this case is:

  • “Whether a court, without providing notice, may adopt a new, dispositive, materially different claim construction after the evidentiary record is closed, and without permitting supplemental briefing or a meaningful opportunity to be heard.”

One amicus brief in support of the petitioner was filed by US Inventor Inc.

Apple Inc. v. International Trade Commission

In this case, the questions presented are:

  1. “Whether a patentee fails to establish ‘significant employment of labor or capital’ ‘with respect to the articles protected by the patent’ under 19 U.S.C. §1337(a)(3)(B) where the patentee’s investment falls into one of three uses listed only in §1337(a)(3)(C).”
  2. “Whether the Federal Circuit’s affirmance of an agency decision where (1) the court’s rationale does not appear in the agency’s opinion and (2) the agency’s result was not required by law is contrary to SEC v. Chenery Corp., 318 U.S. 80 (1943), and its progeny.”

Three amicus briefs all in support of the petitioner were filed by the following parties:

Denials

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