Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today’s report highlights the Federal Circuit’s denial of en banc rehearing in Arthrex, a Federal Circuit decision upholding a $268 million award in favor of the Alfred Mann Foundation for Scientific Research, and a recent Federal Circuit decision reviewing jury instructions defining the “ordinary observer” in design patent cases.

Bloomberg Law’s Ian Lopez reported on the Federal Circuit’s denial of en banc rehearing in Arthrex v. Smith & Nephew yesterday. As explained by Lopez, “[t]he en banc denial highlights divisions in the court about how the Arthrex case was decided” and “also leaves any potential further changes up to Congress or the Supreme Court.” (We previously reported on the denial of rehearing.)

The Alfred Mann Foundation for Scientific Research released a statement on PR Newswire that the Federal Circuit “affirmed a $268 million award in favor of the [Foundation] in a long-running dispute with Australia-based Cochlear Corporation over ground-breaking cochlear implant patents.” As explained by the Foundation, in Alfred E. Mann Foundation for Scientific Research v. Cochlear Corp., the Federal Circuit “upheld a November 2018 judgment . . . that reinstated a jury award in AMF’s favor for $134 million and also granted AMF’s motion for enhanced damages due to a finding of willful infringement by Cochlear, doubling the jury’s damages award.”

At IPWatchdog, Rebecca Tapscott highlighted the Federal Circuit’s decision in Hafco Foundry & Mach. Co. v. GMS Mine Repair & Maint., Inc. in which the court upheld a district court decision finding GMS infringed a Hafco design patent “directed to a rock dust blower for distributing rock dust in areas such as coal mines.” According to Tapscott, the court “found no error in the jury instructions, which defined the ordinary observer as ‘a person who buys and uses the product at issue’ and ‘correctly instructed [the jury] that the question is how the ordinary observer would view the article as a whole.'”