Preserving Issues for Appeal: How a Prison Litigation Case May Affect Patent Law

On Monday, April 24, 2023, the U.S. Supreme Court heard argument in Dupree v. Younger. Dupree is a prisoner civil-rights suit that presents a seemingly dry question of civil procedure more apt to induce drowsiness than interest in your average court-watcher: “Whether to preserve the issue for appellate review a party must reassert in a post-trial motion a purely legal issue rejected at summary judgment.” But, in this case, appearances are deceiving. The Court’s ultimate resolution of the question presented in Dupree may prove enormously consequential for litigators — patent litigators in particular.

To understand what’s at stake, a brief review of the facts of Dupree itself is helpful. Dupree arose when Younger, a Maryland prisoner, accused Dupree, a prison official, of using unconstitutionally excessive force against him. Dupree raised at summary judgment an exhaustion defense: He argued that Younger could not maintain his civil suit because he had not pursued internal grievance remedies at the prison, as he was required to do under the Prison Litigation Reform Act of 1995 (PLRA).