FedCircuitBlog

Earlier this month, the Federal Circuit held an en banc session to hear oral argument in EcoFactor, Inc. v. Google LLC. In this case, the court is reviewing whether a district court erred in “failing to rigorously scrutinize a patentee’s reliance on supposedly comparable licenses,” resulting in an “artificially inflated damages award that is divorced from market realities and devoid of connection to the patent’s incremental improvement to the art.” This is our argument recap.

Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today’s report highlights:

• an article arguing that a recent decision by the Federal Circuit “may make defending patent infringement claims more challenging, time-consuming and expensive, but it also has unwittingly complicated similar patent infringement proceedings involving the same patents and their appeals”;
• a blog post suggesting that, in a recent decision related to agency deference, the Federal Circuit’s “approach to the analysis [was] wrong”;
• a piece reporting how “Commerce Secretary Howard Lutnick has decided to end all current appointments to both the Patent Public Advisory Committee (PPAC) and Trademark Public Advisory Committee (TPAC), effective immediately”; and
• an article suggesting a recent decision by the Federal Circuit “expands which intellectual property (IP) owners can seek relief before the U.S. International Trade Commission (ITC) to block the import of infringing products into the U.S.”

Earlier this month the Federal Circuit issued its opinion in AliveCor, Inc. v. Apple, Inc., a patent case that we have been following because it attracted an amicus brief. In this case, the Federal Circuit reviewed three written decisions of the Patent Trial and Appeal Board in related inter partes review proceedings. The PTAB found all claims of three patents unpatentable over certain asserted prior art. AliveCor challenged the PTAB’s findings, including by arguing that the IPR petitioner, Apple, violated its discovery obligations. The Federal Circuit, in an opinion authored by Judge Stark and joined by Judges Hughes and Linn, affirmed the PTAB’s obviousness determination and declined to address AliveCor’s discovery challenge because it failed to raise the issue at the PTAB. This is our opinion summary.

Earlier this month the Federal Circuit also released its opinion in AliveCor, Inc. v. International Trade Commission, a patent case that we have been following because it attracted several amicus briefs. In this case, the Federal Circuit was asked to review a judgment of the International Trade Commission in a patent infringement case that resulted in a limited exclusion order restricting importation of Apple’s watch products. In a per curium opinion issued by a panel including Judges Hughes, Linn, and Stark, however, the Federal Circuit vacated the Commission’s decision and remanded the case with instructions to dismiss the case as moot. This is our opinion summary.

This morning, the Federal Circuit released three precedential opinions, four nonprecedential opinions, and a nonprecedential order. Of the precedential opinions, two come in patent cases on appeal from the Patent Trial and Appeal Board and the Eastern District of Wisconsin, and the other comes in a takings case on appeal from the Court of Federal Claims. Of the nonprecedential opinions, two come in pro se appeals, one comes in a veterans case, and the other comes in a patent case on appeal from the Court of Federal Claims. The lone nonprecedential order dismisses an appeal. Here are the introductions to the opinions and a link to the dismissal.

Late yesterday the Federal Circuit released two nonprecedential orders dismissing appeals. Today the Federal Circuit released two precedential opinions. In the first, the court affirmed a judgment of the Court of Federal Claims in an appeal of a tax case addressing whether patent litigation expenses are deductible and need not be capitalized. In the second, the Federal Circuit vacated in part a judgment of the District of Massachusetts in a patent case based on a misconstruction of a claim term. Here are the introductions to the opinions and links to the dismissals.

Late yesterday, the Federal Circuit released two nonprecedential orders, each dismissing an appeal. This morning, the Federal Circuit released two nonprecedential orders, each granting a motion to withdraw an appeal. Here is the introduction to the substantive nonprecedential order dismissing an appeal and a link to the other nonprecedential orders.

Late yesterday, the Federal Circuit released a precedential order sua sponte granting en banc review of an appeal from the Court of Federal Claims. In the order, the Federal Circuit requests new briefing related to the effect of the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo. This morning, the Federal Circuit released four precedential opinions, one nonprecedential opinion, three nonprecedential orders, and an errata. Of the precedential opinions, one comes in a patent case, one comes in a trademark case, one comes in a government contract case, and the other comes in a veterans case. The lone nonprecedential opinion comes in a pro se appeal. Of the nonprecedential orders, one grants a motion to summarily affirm and the other two dismiss appeals. Here are the introductions to the opinions and orders as well as links to the errata and dismissals.

Here is an update on recent en banc activity at the Federal Circuit in patent cases. Last week the Federal Circuit heard oral argument in one of the two pending en banc cases. With respect to pending petitions, two new petitions have been filed and the court denied one petition. One of the new petitions raises a question regarding claim construction; the other new petition raises a question concerning whether an abandoned patent application that becomes publicly available only after a challenged patent’s critical date is a printed publication that can be the basis for an inter partes review proceeding. The petition that was denied raised a question regarding apportionment of damages for patent infringement. Here are the details.