Does the sua sponte judicial resolution on summary judgment of issues expressly excluded by pretrial order, and on which the moving party submitted no evidence to meet its burden, deprive petitioner of valuable property rights in violation of the Due Process Clause and the Federal Rules of Civil Procedure?

QUESTION PRESENTED Rule 16(d), Fed. R. Civ. P., states that a pretrial order “controls the course of the action unless the court modifies it.” Rule 56(f) requires a court to “giv[e] notice and a reasonable time to respond” before granting summary judgment “on grounds not raised by a party.” In this patent case, the district court’s pretrial order limited the plaintiff patentholder to asserting only five claims that respondents infringed. Respondents moved for summary judgment on only the five claims asserted; their motion sought no relief and offered no evidence on any other patent claim. The district court granted summary judgment on the five asserted claims, and on nine other patent claims that respondents’ summary judgment motion did not present. In conflict with decisions of the majority of other Circuits on the primacy of pretrial orders and the requirements of adequate notice prior to entry of summary judgment, the Federal Circuit affirmed. The question presented is: 1. Does the sua sponte judicial resolution on summary judgment of issues expressly excluded by pretrial order, and on which the moving party submitted no evidence to meet its burden, deprive petitioner of valuable property rights in violation of the Due Process Clause and the Federal Rules of Civil Procedure? Alternatively, should the case be remanded to the Federal Circuit in light of this Court’s recent holding on the party presentment rule in United States v. Sineneng-Smith, 206 L. Ed. 2d 866 (2020)?