This morning the Federal Circuit issued one order granting en banc rehearing in a trade case, two precedential opinions (one en banc opinion in the trade case and one panel opinion in a patent case), and two Rule 36 summary affirmances. Here is the text of the order, the introductions to the opinions, and a list of the Rule 36 judgments.

Sunpreme Inc. v. United States (Precedential)

Cross-Appellant United States filed a Combined Petition for Panel Rehearing and Rehearing En Banc. A response to the petition was invited by the court and filed by Appellant Sunpreme Inc. Several motions for leave to file amici curiae briefs were also filed and granted by the court.

The petition was referred to the panel that heard the appeal, and thereafter the petition, response, and briefs of amici curiae were referred to the circuit judges who are in regular active service. A poll was requested and taken.

Upon consideration thereof, IT IS ORDERED THAT: (1) The petition for rehearing en banc is granted. (2) The panel’s judgment and original opinion entered on May 16, 2019 is vacated and is replaced by the en banc opinion issued this date.

Sunpreme Inc. v. United States (Precedential)

Sunpreme Inc. appeals from the final decision of the United States Court of International Trade in favor of the United States and SolarWorld Americas, Inc., concluding that Sunpreme’s solar modules are covered by the scope of antidumping and countervailing duty orders on U.S. imports of certain solar cells from the People’s Republic of China. The United States and SolarWorld cross-appeal from the same decision, which also concluded that the United States Department of Commerce (“Commerce”) could not instruct United States Customs and Border Protection (“Customs”) to continue suspending liquidation of Sunpreme’s solar modules entered or withdrawn from warehouse for consumption before the scope inquiry was initiated.

A unanimous panel of this court previously affirmed the portion of the Court of International Trade’s decision upholding Commerce’s scope ruling. Sunpreme Inc. v. United States, 924 F.3d 1198, 1212 (Fed. Cir. 2019) (“Panel Opinion”). A majority of that panel, addressing the crossappeal brought by the United States and SolarWorld, also affirmed the Court of International Trade’s conclusion that Commerce’s instructions to continue suspending liquidation of goods entered or withdrawn prior to the scope inquiry were unlawful. Id. at 1215.

The United States petitioned for en banc rehearing of its cross-appeal. We now grant that petition to resolve whether it is within Customs’s authority to preliminarily suspend liquidation of goods based on an ambiguous antidumping or countervailing duty order, such that the suspension may be continued following a scope inquiry by Commerce. We conclude that it is.

Because we find that Commerce’s instructions regarding continued suspension of liquidation were lawful and not reliant on ultra vires acts of Customs, we grant rehearing en banc limited to that issue, vacate the original panel opinion, and reverse that portion of the Court of International Trade’s decision. Commerce’s instructions are reinstated in full.

Although the original panel opinion is vacated due to our en banc consideration of the United States’s cross-appeal, we reinstate the remaining portions of the panel opinion, including the affirmance of the Court of International Trade’s conclusion that Commerce’s final scope ruling is supported by substantial evidence. For the sake of completeness, the undisturbed portions of the panel opinion are reproduced below.1

1 Therefore, the en banc portion of this opinion consists only of Part II of the Discussion section.

Amgen Inc. v. Amneal Pharmaceuticals LLC (Precedential)

Amgen appeals from the district court’s judgment that Amneal Pharmaceuticals LLC and Amneal Pharmaceuticals of New York LLC (collectively, “Amneal”) does not infringe claims 1, 2–4, 6, 8–12, and 14–18 of U.S. Patent 9,375,405 (“the ’405 patent”), Piramal Healthcare UK Ltd. (“Piramal”) does not infringe claims 1–6 and 8–20. Zydus Pharmaceuticals (USA) Inc. and Cadila Healthcare Ltd. (collectively, “Zydus”) cross-appeals from the court’s judgment that they infringe claims 1–4, 6, 8–9, 15–17, and 19 of the ’405 patent. Amgen Inc. v. Amneal Pharm. LLC, 328 F. Supp. 3d 373 (D. Del. 2018) (“Decision”). We conclude that the district court construed the claims incorrectly and erred in its analysis of infringement by Amneal. However, the court properly applied prosecution history estoppel to Amgen’s arguments regarding Piramal and otherwise did not err in its fact findings for Zydus. Thus, we vacate and remand the district court’s judgment as to Amneal and affirm with respect to Piramal and Zydus.

Rule 36 Judgments