Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today’s report highlights coverage by the Washington Post and Politico of Monday’s oral arguments in a case addressing whether the federal government charges excessive fees for accessing federal court documents and a comment on the need for the Federal Circuit to use en banc rehearings too resolve core patent questions such as those involving claim construction.
Ann E. Marimow reported for the Washington Post about the oral arguments heard on Monday at the Federal Circuit in National Veterans Legal Services Program v. United States. As explained by Marimow, the lawsuit “challenges the government’s paywall to search online for case documents through the service known as PACER, an acronym for Public Access to Court Electronic Records.” Marimow notes that the three nonprofit organizations that filed the lawsuit assert “that the dime-per-page fee unlawfully exceeds the cost of running the system.” On the other hand, Marimow writes that “Congress gave the federal judiciary broad discretion when it comes to setting PACER fees and did not establish a ‘correct’ fee.”
Josh Gerstein of Politico also highlighted the the oral arguments in National Veterans Legal Services Program v. United States. According to Gerstein, “[t]wo of the judges, Raymond Clevenger and Todd Hughes, sounded inclined to allow the lawsuit to continue over the objections of the Justice Department, which argued for dismissal of the case.” Gerstein notes that “Clevenger asked, incredulously, whether the Justice Department was contending that PACER users couldn’t get refunds even if the courts incurred ‘knowingly, blatantly illegal’ expenses on the accounts, like new curtains for the Supreme Court or ‘gold-plated toilets’ for judges.” (We previously provided an argument preview in this case and highlighted the case in our preview of this month’s Court Week. We will post our argument recap next week.)
At IPWatchDog, former Chief Judge of the Federal Circuit Paul Michel and John Battaglia commented on their view that “[t]he Federal Circuit needs to go en banc more often.” According to Michel and Battaglia, “[c]laim construction is a particularly vexing problem,” and “the Federal Circuit’s claim-construction precedents have proven wholly inconsistent—and its constructions unpredictable.” Michel and Battaglia state that the Federal Circuit’s immediate problem is “[i]ts reticence to vote for and resolve core patent questions—such as those involving claim construction—with an en-banc decision by the court.”