Petitions / Supreme Court Activity
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Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. With respect to granted cases, there is no new activity to report since our last update. With respect to petitions, one new petition was filed with the Court in a veterans case; two reply briefs in support of petitions were filed in a patent case and a veterans case; and the Court denied certiorari in three patent cases, three veterans cases, a trade case, a Fair Labor Standards Act case, and a pro se case. Here are the details.

Granted Cases

There is no new activity to report.

Petitions

New Petitions

In Bufkin v. McDonough, a veterans case, the Court was asked to review the following question:

  • “Must the Veterans Court ensure that the benefit-of-the-doubt rule was properly applied during the claims process in order to satisfy 38 U.S.C. § 7261(b)(1), which directs the Veterans Court to ‘take due account’ of VA’s application of that rule?”

New Replies

Replies in support of petitions were filed in two cases.

In Tehrani v. Hamilton Technologies LLC, a patent case, Tehrani filed her reply brief. The petition presented the following questions:  

  1. “Whether the Court of Appeals for the Federal Circuit erred by declaring a non-expert as a POSITA despite all the evidence presented to the contrary.”
  2. “Whether the Court of Appeals for the Federal Circuit erred by relying on unsupported statements against the Petitioner in the face of reliable published evidence to the contrary.”
  3. “Whether the Court of Appeals for the Federal Circuit erred by affirming the decision by the Patent Trial and Appeal Board invalidating the challenged claims of US Patent 7,802,571 while none of the requirements of those claims were met by any combinations of the alleged prior art.”
  4. “Whether the Court of Appeals for the Federal Circuit erred by using a) a paper presenting untrue results and b) a fatal device against the challenged claims of US Patent 7,802,571.”
  5. “Whether the Court of Appeals for the Federal Circuit (‘Federal Circuit’) erred by affirming the decision by the Patent Trial and Appeal Board invalidating the challenged claims of U.S. Patent 7,802,571 while none of the requirements of obviousness under 35 U.S.C. § 103(a) were met by either of the alleged grounds, and against the Decisions of the Supreme Court of the United States and the Precedents of the Federal Circuit.”

In its brief in opposition, Hamilton Technologies asserted Tehrani “has not identified a legal error, but rather is seeking to reargue established facts that have been fully evaluated.” According to Hamilton Technologies, “the [Patent Trial and Appeal] Board and the Federal Circuit cited substantial evidence in support of all factual findings and applied established legal principles to those factual findings.” Hamilton Technologies argued Tehrani’s petition “rais[es] unfounded accusations against both the Board and the Federal Circuit over alleged improper factual determinations.”

Now, in her reply brief, Tehrani asserts the “decision of the Federal Circuit . . . is based on relying on Hamilton expert’s testimonies” in violation of the Fed. R. Evid. 702(c),(d) and 37 C.F.R. § 42.65(a) because the testimonies “were never supported by a shred of evidence.” According to Tehrani, the Federal Circuit’s decision “clearly conflicts with the previous decisions of the Supreme Court” because none “of the limitations of the Patent claims [or] any of the obviousness requirements” were met. Tehrani argues that “[s]tripping someone of her patent rights against all the provisions of the law and the guidelines set by [the Supreme] Court sends a chilling message to the inventing public.”

In Military-Veterans Advocacy Inc. v. McDonough, a veterans case, Military-Veterans Advocacy filed its reply brief. The petition presented the following questions for review: 

  1. “Whether the Federal Circuit’s Decision Warrants Certiorari When the ‘Airspace’ Rule was upheld despite its conflict with the Convention on International Civil Aviation, T.I.A.S. No. 1591, arts. 1-2 (Dec. 7, 1944) (Chicago Convention).”
  2. “Whether a Proper Construction of the BWN Act Warrants Certiorari when the Federal Circuit’s decision and the VA’s BWN Rule conflicts with the plain statutory language and departs from the plain meaning of the Agent Orange Act and the Federal Circuit’s Own decision in Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019) (en banc).”
  3. “Whether the Secretary conducted a flawed interpretation of the Agent Orange Act contrary to its own established precedent and in contravention of the pro-veteran/pro-claimant canon of construction[.]”

In its brief in opposition, the government asserted “[n]othing in the text of the Agent Orange Act suggests that Congress intended the Act’s presumptions to apply to veterans who served . . . in the high-altitude skies.” As for why, the government argued that in “Vietnam’s atmosphere, . . . the chances of herbicide exposure were close to nonexistent.” According to the government, moreover, by “drafting the BWN Act so that it substantively mirrors the Agent Orange Act . . . Congress clearly indicated that the BWN Act would . . . supply an exclusive definition of the relevant geographic area” for offshore service disability claims. Furthermore, the government argued, “the pro-veteran canon should be invoked only to resolve ‘interpretive doubt’ when the relevant statutory text remains ambiguous” and, here, the government said, traditional statutory interpretation tools support the government’s interpretation.

Now, in its reply brief, Military-Veterans Advocacy asserts the term “territorial sea” is not defined within the BWN Act. Instead, Military-Veterans Advocacy argues, it “is defined by the Convention on the Territorial Sea and the Contiguous Zone.” According to Military-Veterans Advocacy, moreover, the “Secretary notes that the legislation was necessary to ‘mitigate concerns,’” yet “[t]he Secretary argues Congress declined to expand the statutory presumption into the airspace.” In response to the government’s geographic restriction argument, Military-Veterans Advocacy argues “Congress never said or implied that they were addressing airspace above the Vietnamese land mass.” Instead, Military-Veterans Advocacy asserts, “airspace above the offshore water” and the airspace above Vietnam “are two separate geographic areas and be treated accordingly.”

Denials

The Court denied certiorari in the following cases: