Petitions / Supreme Court Activity
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Here is an update on activity at the Supreme Court in cases decided by the Federal Circuit. With respect to granted cases, oral argument in Feliciano v. Department of Transportation will take place on December 9. Since our last update, a waiver of the right to respond was filed in a pro se case, two new briefs in opposition were filed in a patent case and a veterans case, and seven amicus briefs were filed in two patent cases and a veterans case. In addition, the Court denied the petition in a patent case raising questions related to Judge Newman’s removal from hearing appeals, Federal Rule of Civil Procedure 12(d), and eligibility. Here are the details.

Granted Cases

On December 9, the Supreme Court will hear oral argument in Feliciano v. Department of Transportation, a case originally decided by the Merit Systems Protection Board. The Supreme Court granted review to consider whether “a federal civilian employee called or ordered to active duty under a provision of law during a national emergency is entitled to differential pay even if the duty is not directly connected to the national emergency.” The Federal Circuit held that, “[b]ecause Mr. Feliciano’s service does not qualify as an active duty contingency operation, as required by 5 U.S.C. § 5538(a), the Board properly denied differential pay.” Our argument preview is posted here.

Petitions Cases

Waiver of the Right to Respond

A waiver of the right to respond was filed in Frederick v. McDonough, a pro se case presenting the following questions:

  1. “The SHA medical exam is required at discharge by the [Department of Defense and the Department of] Veterans Affairs. When a serviceman is overlooked, would this be a Grave Prejudicial Error and a violation of the Due Process under the Fifth Amendment?”
  2. “If there is Spoliation of favorable evidence, how is ‘Benefit of the Doubt’ under 38 U.S.C. [§] 5107 evenly balanced?”
  3. “When the VA has proof of unemployability and denies a claim . . . [, h]as the VA just violated the Veteran[’s] 14th Amendment, Equal Protection Clause . . . [and] Due Process Rights under the Constitution?”
  4. “Under 38 U.S.C. [§] 5103A, [w]hen [the] VA does not schedule an examination or help find missing records, could this be considered Fraudulent Concealment?”
  5. “Can a Veteran use the Continuing Violation Doctrine, in an Equitable Estoppel claim with alleged unconstitutional conduct and intentional infliction of emotional stress?”
  6. “Is it possible for 42 U.S.C. [§] 1983, Equitable Estoppel and a Medical Malpractice Tort claim to be used in the same case?”

Briefs in Opposition

In Island Intellectual Property LLC v. TD Ameritrade, Inc., a patent case, TD Ameritrade filed its brief in opposition to the petition. The petition presented the following questions:

  1. “Do the Federal Rules of Civil Procedure apply to patent cases like any other federal case, including in particular FRCP 56 and its prescription against granting summary judgment when the nonmoving party presents evidence that raises material facts in dispute?”
  2. “Is it proper for the Federal Circuit to use its own unique Local Rule 36 to affirm district court rulings with one-word decisions lacking explanation or analysis, when the grounds for affirmance are unclear in view of the arguments made on appeal?”

Now, in response, TD Ameritrade argues that Island Intellectual Property’s claims are “similar to the claims that were found ineligible in Alice Corp. v. CLS Bank Int’l, 573 U.S. 208 (2014),” because they “use a computer to obtain transaction data, track account balances, and transfer money between accounts.” According to TD Ameritrade, “[a]s in Alice, this use of computers does not impart patentability to these fundamental economic activities.” TD Ameritrade further asserts that “no amount of evidence about the purported novelty of Island’s methods of aggregate account management could show that its claims were patent-eligible.”

In Soto v. United States, a veterans case, the government filed its brief in opposition to the petition. The petition presented the following question:

  • “When a person makes a demand for money from the federal government pursuant to federal statute, what test should courts and agencies use to determine whether that statute includes a settlement procedure that displaces the default procedures and limitations set forth in the Barring Act (31 U.S.C. § 3702)?”

Now, in response, the government argues that “[n]othing in the text of . . . [10 U.S.C. §] 1413a or any other provision of law supersedes the six-year limit that the Barring Act imposes on the Secretary of Defense’s authority to settle claims for unpaid military compensation.” According to the government, “[w]hen Congress has elected to displace the Barring Act’s generally applicable settlement procedures or the Act’s statute of limitations, it has done so expressly.” And, the government continues, Section 1413a “conveys no [settlement] authority.” The government asserts that reading Section 1413a to “implicitly include[] its own settlement mechanism for unpaid claims would render . . . [31 U.S.C.] 3702(a)(1)(A)—the Barring Act provision that grants the Secretary of Defense settlement authority . . . — a virtual nullity.”

Amicus Briefs

New amicus briefs were filed in three cases.

Island Intellectual Property LLC v. TD Ameritrade, Inc.

Three new amicus briefs were filed in Island Intellectual Property LLC v. TD Ameritrade, Inc., the patent case mentioned above presenting the following questions:

  1. “Do the Federal Rules of Civil Procedure apply to patent cases like any other federal case, including in particular FRCP 56 and its prescription against granting summary judgment when the nonmoving party presents evidence that raises material facts in dispute?”
  2. “Is it proper for the Federal Circuit to use its own unique Local Rule 36 to affirm district court rulings with one-word decisions lacking explanation or analysis, when the grounds for affirmance are unclear in view of the arguments made on appeal?”

The Association of Amicus Counsel filed an amicus brief in support of the petitioner. In its brief, the AAC asserts that allowing judicial exceptions to the “statutory standards of  [35 U.S.C.] 101 patent eligibility of software-based inventions” to stand would “inflict harmful consequences upon the communities of inventors [and] patent owners.” According to this brief, “the present rulings, along with similar outcomes in other situations, will add to the ongoing frustration of long established expectations in, and diminishing traditional reliances upon, the operation of the rule of law in patent cases.” The brief argues that the Court must consider three points. First, it contends that the interests of the legal community “are served by full, fair, and consistent judicial adherence to the legal requisites for rendering summary judgments . . .  in patent cases just as they are in other litigation contexts.” Second, it argues that under the current law, the test for patent eligibility “must be conducted at the threshold of every case in which the legal issue of patent eligibility is raised.” Third, it maintains, the public is “entitled to a patent system characterized by the orderly development of a comprehensive, robust, and reliable law of judicial precedent and stare decisis in appellate case law governing the scope of judicial review.”

Harris Brumfield, Trustee for Ascent Trust, filed an amicus brief in support of the petitioner. In his brief, Brumfield argues “[t]he Federal Circuit persistently misapplies summary judgment standards under Federal Rule of Civil Procedure 56 in determining patent eligibility” by affirming the “invalidation of patents under 35 U.S.C. § 101 at the summary judgment stage, despite the existence of extensive, material factual disputes in the record.” According to this brief, by “employ[ing] a summary judgment standard that diverges from the Federal Rules, other Circuit Courts, and precedents of this Court,” the Federal Circuit “unjustly deprives patent owners of the opportunity to be heard.” The brief further asserts that “[t]he failure of the Federal Circuit to articulate a rationale for its decision deprives property owners of an ability to seek meaningful review of that opinion.”

The Boston Intellectual Property Law Association filed an amicus brief in support of the petitioner. In its brief, BIPLA asserts “the Federal Circuit has established a practice of issuing one-word decisions on the merits that offer no principled justification,” despite this Court’s “recognition of the importance of a principled justification to any appellate decision.” According to this brief, “[a]ny justification for a [Federal Circuit] Rule 36 decision is at least undisclosed, but also potentially unknowable.” The brief asserts that such decisions “undermine the legitimacy of the federal appellate judiciary and the country’s ability to see itself as . . . bound by well-reasoned rule of law.”

ParkerVision, Inc. v. TCL Industries Holdings Co.

Two new amicus briefs were filed in ParkerVision, Inc. v. TCL Industries Holdings Co., another patent case that presents the following question:

  • “Whether 35 U.S.C. § 144, which requires the Federal Circuit to issue ‘opinion[s]’ in PTAB appeals, is a reason-giving directive that prohibits the Federal Circuit’s practice, under Federal Circuit Rule 36(a), of summarily affirming PTAB decisions without issuing opinions.”

Injustice Pool, LLC filed an amicus brief in support of the petitioner. In its brief, Injustice Pool asserts that Congress has imposed on the Federal Circuit “a mandate that the court issue an ‘opinion’ in every appeal from the PTAB” to serve as a control on inter partes review. The brief argues that, “instead of following that Congressional directive to write full ‘opinions’ in every PTAB appeal, the Federal Circuit instead follows its local practice outlined in Federal Circuit Rule 36(a) allowing it to issue one-word ‘judgments of affirmance without opinion.'” The brief contends that, “[i]nstead of serving as a check on agency action, [the Federal Circuit] defers to agency action, upholding the decision without explaining why,” and leaves parties to question “whether the Federal Circuit is giving their cases any consideration at all.”

Fair Inventing Fund filed an amicus brief in support of the petitioner. FIF asserts that “the Federal Circuit has defied Congress’s command” by “affirming hundreds of PTAB decisions ‘without opinion’ under Federal Circuit Rule 36.” According to the brief, the Federal Circuit in this case “invalidat[ed] nine claims of Petitioner’s patent with a single word: ‘Affirmed.'” The brief asserts that 35 U.S.C. 144 “requires an opinion—a statement, however brief—giving the reasons for the judgment,” and that “the failure to give reasons in PTAB appeals” violates §144, “hinders the development of patent law[,] and erodes trust in the patent system.”

Frantzis v. McDonough

Two new amicus briefs were filed in Frantzis v. McDonough, a veterans case that presents the following question:

  • “[W]hether, at least where the Board’s denial of a veteran’s claim is grounded in a credibility determination, the governing federal statutes or the Due Process Clause require that the Board member who conducts the hearing must be the same Board member who makes a credibility determination regarding the veteran’s testimony.”

The Federal Circuit Bar Association filed an amicus brief in support of the petitioner. In its brief, the FCBA asserts that “an array of statutory provisions reflect Congress’s consistent intent over the decades to preserve the veteran’s right to address the trier of fact in the midst of other administrative changes.” According to the brief, when Congress enacted the Veterans Appeals Improvement and Modernization Act of 2017, it preserved “the veteran’s right to elect an in-person hearing in [38 U.S.C. §] 7107, as well as the requirement under [38 U.S.C. §] 7102 that the Board member assigned to a proceeding ‘make the determination thereon.'” The brief further argues that “Congress did not grant the Board discretion to assign a different Board member to hear a veteran’s case, and another Board member to decide that case.” The brief asserts the Federal Circuit wrongly inferred “that Congress intended to authorize the Board to split proceedings,” based solely on “the omission of the language that the member who conducts the hearing shall ‘participate in making the final determination’ in Congress’s rewrite of § 7107(c).” Moreover, the brief asserts, in deeming the statutory language “unambiguous,” the Federal Circuit wrongly disregarded the pro-veteran canon.

The National Law School Veterans Clinic Consortium filed an amicus brief in support of the petitioner. In its brief, the NLSVCC asserts that a veteran’s right to a hearing “is close to meaningless without a corresponding right to be heard by the judge who will decide the merits of the case and whether the testimony provided is credible.” According to the brief, “[t]he Board’s recently adopted practice of judge-swapping—allowing one Board member to preside over the hearing, and a different Board member to actually decide a veteran’s case—transforms hearings into ‘paper reviews[s].'” The brief further asserts that the Appeals Modernization Act “was not designed to eliminate core pro-claimant adjudicatory procedures.”

Denial

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