The Last Word: ParkerVision’s Reply Brief Makes Final Push for Supreme Court Review of Rule 36

by Dennis Crouch

The Supreme Court is poised to decide whether to grant review in the pair of R.36 cases that have been pending now since last fall, ParkerVision and Island IP.  These cases challenging the Federal Circuit's practice of issuing one-word "AFFIRMED" judgments under Rule 36 without providing any explanation. ParkerVision's reply brief was filed on February 28, 2025 rests on a straightforward statutory interpretation: 35 U.S.C. § 144 requires the Federal Circuit to "issue to the Director its mandate and opinion" when deciding appeals from the Patent Trial and Appeal Board (PTAB). I agree with ParkerVision on this point -- the term "opinion" is a legal term of art that unambiguously requires a court to explain its reasoning—something a one-word affirmance plainly fails to do.  What was fairly amazing about the opposition brief, filed last month by the Chinese electronics giant TCL, is the absence of any direct push-back against central statutory interpretation question.  As ParkerVision notes, "Respondents concede the question presented. They do not dispute that § 144 of the Patent Act requires the Federal Circuit to decide an appeal from the Patent Trial and Appeal Board (PTAB) by issuing an 'opinion.'"