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 pro se case, the Court requested a response to a petition in a patent case concerning obviousness, and two amicus briefs were filed in the same patent case concerning obviousness. In addition, the Court denied the petitions in three patent cases and one pro se case, and the Court dismissed the petitions in five pro se cases. Here are the details.

Granted Cases

There is no new activity to report.

Petitions

New Petitions

In Chin-Young v. Department of the Army, a pro se petitioner asked the Court to review the following questions:

  1. “Whether covered Federal employees under employment-at-will have an absolute right to constitutionally sound due process procedures under MSPB administrative law.”
  2. “Whether Federal employees-whistle blowers are entitled to de novo legal review of a directed reassignment.”
  3. “Whether federal employees return rights to official employment positions are discretionary.”

Request for Response

The Court requested a response to the petition in Vanda Pharmaceuticals Inc. v. Teva Pharmaceuticals USA, Inc., a patent case. The petitioner is asking the Court to review “[w]hether obviousness requires a showing of ‘predictable’ results, as this Court held in KSR, or a mere ‘reasonable expectation of success,’ as the Federal Circuit has held both before and after KSR?”

Amicus Briefs

Two amicus briefs were filed in support of the petitioner in Vanda Pharmaceuticals Inc. v. Teva Pharmaceuticals USA, Inc., the patent case previously mentioned.

The American Council of the Blind (ACB), Blinded Veterans Association (BVA), and PRISMS filed an amicus brief asserting that “[c]ompanies must pick and choose which treatments to research, and part of that calculation is economic.” Thus, the brief argues, “medication . . . may be passed over if there is simply no way to recover the costs of developing it.” By contrast, “[p]atent protections help ensure that the company will indeed have a time of market exclusivity in which to do so.” According to the brief, due to the Federal Circuit’s decision, “every company faces a higher risk that the treatment it considers developing today may be quickly overtaken by generic versions after approval.”

Christopher M. Turoski and the National Association of Patent Practitioners filed an amicus brief arguing “the Federal Circuit has departed from the historic and longstanding standard codified in § 103 and continued in the [Supreme] Court’s cases on obviousness.” According to this brief, the standard suggested by the Federal Circuit, “reasonable expectation of success,” “is far afield of a plain indication or plain foreshadowing, the standard in the pre-1952 judicial precedents.” The brief urges the Supreme Court to grant review because “[o]bviousness is a bedrock defense to claims of patent infringement, and the Federal Circuit—the sole court charged with establishing legal uniformity of the patent laws— should not be permitted to depart from [the Supreme] Court’s jurisprudence.”

Denials

The Supreme Court denied certiorari in four cases. In one of the patent cases raising questions related to the preclusive effect of final written decisions of the Patent Trial and Appeal Board, Liquidia Technologies, Inc. v. United Therapeutics Corporation, Justice Jackson took no part in the consideration or decision of the petition. Here are the other cases:

Dismissals

The Supreme Court dismissed the petitions for writs of certiorari in five pro se cases. In these cases, the Court stated: “As the petitioner has repeatedly abused this Court’s process, the Clerk is directed not to accept any further petitions in noncriminal matters from petitioner unless the docketing fee required by Rule 38(a) is paid and the petition is submitted in compliance with Rule 33.1.”