Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today’s report includes a Washington Post article on Oracle’s challenge to the Defense Department’s award of a massive cloud-computing contract to Microsoft, a highlight of a recent concurring opinion by two Federal Circuit judges criticizing the court’s recent Arthrex decision, and an amicus brief filed by the Cato Institute related to railroad right-of-way easements.

The Washington Post’s Aaron Gregg reported that “Oracle is pressing forward with a long-running legal challenge to the Pentagon’s massive cloud computing contract.” Oracle recently filed an appeal in the Federal Circuit in which Oracle, as explained by Gregg, “accused the Defense Department of improperly limiting competition when it set the terms of the procurement.” Gregg noted that “Oracle’s appeal comes as a surprise to those who followed the company’s lawsuit in the U.S. Court of Federal Claims” because that lawsuit “fixated on the idea that Amazon had an unfair advantage,” and Amazon ending up losing the contract to Microsoft. Still, Gregg pointed out that “procurement experts say Oracle may still have a shot at blocking the contract.” (We previously reported on Oracle’s appeal.)

Reuters’ Barbara Grzincic highlighted a recent concurring opinion by two Federal Circuit judges “criticiz[ing] three of their colleagues for requiring new hearings in ‘potentially hundreds’ of patent challenges already decided by the U.S. Patent Trial Appeals Board.” According to Grzincic, in Arthrex, Inc. v. Smith & Nephew, Inc., on behalf of the panel Judge “Moore said a remand was required by the U.S. Supreme Court’s 2018 decision in . . . Lucia v. SEC.” Grzincic, however, noted that Judges Dyk and Newman in a recent concurring opinion in Bedgear v. Fredman Bros Furniture Co. “said the Arthrex panel missed a key distinction: ‘the fix in Lucia was an agency fix, whereas the fix in Arthrex is a judicial fix.'”

At the Cato Institute, Mark F. Hearne II, Stephen S. Davis, and Ilya Shapiro noted that they recently filed an amicus brief at the Federal Circuit in Hardy v. United States. In this case, the Court of Federal Claims found a taking of private property when the government “transferred [an] abandoned [railroad] right-of-way easement to the Newton County Trail Path Foundation, which intend[ed] to use the easement for a public recreation trail.” As Hearne, Davis, and Shapiro explain, they argue in their brief “that under state-law principles—which even in the federal eminent domain context govern the disposition of property interests—an easement, once abandoned, reverts to the landowners and re-merges into their property.” As a result, they argue that “[t]he Rails-to-Trails Act does not give the federal government carte blanche to convert railroad right-of-way easements into recreational trails or other public uses.” The brief urges the Federal Circuit to affirm the lower court ruling “or countless property owners will be subject to a rails-to-trails program that has, well, gone off the rails.”