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. Notably, on Friday the Supreme Court granted certiorari in a veterans case. In addition, one new petition was filed in a patent case presenting questions related to motions under Federal Rule of Appellate Procedure 60, the judicial exceptions to patent eligibility, and the application of Federal Rule of Civil Procedure 56 in patent cases; the court received waivers of the right to respond to petitions in one patent case and two pro se cases; an amicus brief was filed in a case presenting a question related to the use of Federal Circuit Rule 36 in appeals from decisions of the Patent Trial and Appeal Board; and the Court denied a petition in a patent case. Here are the details.

Granted Cases

Last week the Supreme Court granted certiorari in Soto v. United States, a veterans case. Soto presented the following arguments and question in his petition:

“This case determines whether thousands of medically retired combat veterans should receive all the combat related special compensation (CRSC) that Congress specifically authorized for combat veterans. The government has elected to calculate the period of retroactive compensation due using the procedure in the Barring Act (31 U.S.C. § 3702) instead of the one in the CRSC statute (10 U.S.C. § 1413a)—a maneuver that allows the government to apply the Barring Act’s six-year limitations period in order to pay the veterans less. But the Barring Act is a default provision and does not apply where ‘another law’ provides a procedure for calculating the amount due—that is, for ‘settling’ a demand for payment.”

“Although this Court’s precedent defines ‘settlement’ of demands for payment from the federal government as ‘the administrative determination of the amount due,’ it has not decided the test for whether a statute provides a settlement procedure that should apply in place of the Barring Act. And agency practice more broadly—which aligns with the test the District Court articulated and is consistent with this Court’s definition of ‘settlement’—is irreconcilable with the novel test that the Federal Circuit applied, although both tests claim reliance on this Court’s definition of ‘settlement.’”

“The question presented is:”

“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)?”

On Friday the Supreme Court granted the petition, but indicated that it will consider the following reformulated question:

  • “Given the Federal Circuit’s holding that a claim for compensation under 10 U.S.C. § 1413a is a claim ‘involving . . . retired pay’ under 31 U.S.C. § 3702(a)(l)(A), does 10 U.S.C. § 1413a provide a settlement mechanism that displaces the default procedures and limitations set forth in the Barring Act?”

Petition Cases

New Petition

In Brumfield v. IBG LLC, a patent case, Brumfield asked the Court to review the following questions:

  1. “Whether the lower courts abused their discretion by denying the meritorious Rule 60(b)(3) motion, and whether Rule 60(b)(3) requires a showing that a moving party was diligent in uncovering fraud, misrepresentation, or misconduct to obtain relief from a judgment?”
  2. “Whether this Court’s three categorical judicial exceptions to patent eligibility that are further defined by the two-step Alice/Mayo test impose limitations on patent eligibility that are inconsistent with the text of 35 U.S.C. § 101 of the Patent Act of 1952?”
  3. “Whether this Court’s supervisory authority is needed to correct the Federal Circuit’s improper (1) application of Rule 56 to patent cases and (2) practice of deciding issues that were never argued or briefed on appeal?”

Waivers of the Right to Respond

Waivers of the right to respond were filed in three cases:

Amicus Brief

One new amicus brief was filed in ParkerVision, Inc. v. TCL Industries Holdings Co., a case presenting 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.”

The Association of Amicus Counsel and Professor Mary Ann Glendon filed an amicus brief in support of the petitioner. In it, they assert that, “with so many patent judgments of lower tribunals being summarily affirmed under Rule 36, . . . the original purpose and mission of the Federal Circuit are being undermined.” As for why, they say “cases that could have resulted in published precedential opinions would have contributed to the development of patent law jurisprudence.” According to this brief, “with no findings by the Federal Circuit being available in these circumstances, the only result for the present Petitioner has been crickets–hardly the epitome of due process.” The brief also asserts that “[j]udges, after all, ‘more than any other officials are expected . . . not only to reason their way through to the decisions they reach, but to expose their reasoning processes to the parties and the public.'” They argue that “[f]ailing to do so crosses the line from the ‘authoritative to the authoritarian.'”

Denial

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