Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today’s report highlights a news report on the Supreme Court temporarily staying a Federal Circuit mandate, a New York Times article discussing a recent denial of en banc rehearing, and comments by former Chief Judge Paul Michel on the Federal Circuit’s obviousness standard.
Tiffany Hu reported for Law360 about the Supreme Court’s order in Sanofi-Aventis Deutschland GmbH v. Mylan Pharmaceuticals Inc. “giving Mylan time to respond to Sanofi’s bid to leverage the recent Arthrex ruling for its own case.” Hu notes that the “Federal Circuit rejected Sanofi’s request to apply Arthrex to its own case,” ruling “that Sanofi had forfeited its constitutional argument by not raising it in its brief.” (We previously reported on the Federal Circuit’s denial of Sanofi’s petition for en banc rehearing. Yesterday we also reported on the Supreme Court’s order staying issuance of the Federal Circuit’s mandate pending Mylan’s filing of a brief responding to Sanofi’s request for a longer stay.)
The New York Times picked up a Reuters report by Jan Wolfe explaining that in VirnetX Inc. v. Apple Inc. the Federal Circuit “on Monday denied a request by Apple Inc that it reconsider a decision upholding a finding Apple iPhones infringed VirnetX Holding Corp patents relating to secure communications technology.” According to Wolfe, the court’s November ruling voided a Texas jury’s $503 million damages calculation, but “left in place [the] jury’s finding that some versions of the iPhone infringed two VirnetX patents, setting the stage for another trial.” (We previously reported on Apple’s petition for en banc rehearing.)
Perry Cooper highlighted for Bloomberg Law comments made by retired Federal Circuit Chief Judge Paul Michel, in which Michel “told the Federal Circuit its recent ruling on a standard used to [assess] whether a patent is obvious is ‘starkly incorrect’ and deviates from the court’s precedent.” According to Cooper, “Michel joined patent owner SRAM LLC’s call for the full U.S. Court of Appeals for the Federal Circuit to review a Dec. 18 panel decision” in FOX Factory, Inc. v. SRAM, LLC. Cooper said the court’s decision “raised the bar for companies defending patents to show the required connection between evidence of secondary considerations and the patent claims.” (We previously reported on SRAM’s petition for en banc rehearing.)