Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today’s report highlights two articles discussing the Federal Circuit’s denial of en banc rehearing in Arthrex, Inc. v. Smith & Nephew, Inc., a report on upcoming oral arguments set to be heard before the Federal Circuit over plutonium fines, and a preview of the oral argument to be heard before the Supreme Court in Google LLC v. Oracle America, Inc.
At PatentlyO, Dennis Crouch highlighted the Federal Circuit’s denial of rehearing in Arthrex, Inc. v. Smith & Nephew, Inc., stating that “Judge Moore authored the original opinion in the case and also authored an opinion here defending that original opinion.” As explained by Crouch, “the court invalidated the removal restrictions of 5 U.S.C. § 7513 as it applies to [administrative patent judges] — thus making it easier for the [United States Patent and Trademark Office] director to remove APJs at will.” Crouch notes that the court held this move “was sufficient to shift APJs from principal Officers to inferior Officers and thus ‘save’ the system.” (We previously reported on the denial of rehearing.)
Scott Graham filed an article with Law.com explaining that “[t]he U.S. Court of Appeals for the Federal Circuit is sticking with its Arthrex decision on the appointment [of] administrative patent judges.” Graham notes that “[f]our judges who’ve written or joined panel decisions critiquing Arthrex contributed to dissents from denial of en banc review Monday.” As explained by Graham, “Judge Timothy Dyk . . . described removing the APJs’ civil service protections as ‘a draconian remedy’ that should not be invoked without giving Congress and the PTO a chance to develop something less disruptive.”
Colin Demarest of the Aiken Standard reported that the Federal Circuit will hear oral arguments in State of South Carolina v. United States on May 5. Demarest notes that “[t]he upcoming hearing in Washington, D.C., is the latest development in a long line of legal back-and-forth as well as judicial maneuvering by the Palmetto State.” South Carolina seeks “millions of dollars in plutonium fines from the federal government.” (We previously reported on South Carolina’s opening brief in this case.)
Samantha Ann Schwartz of CIO Drive previewed the upcoming oral argument in Google LLC v. Oracle America, Inc., which, though recently postponed, will be heard before the Supreme Court. According to Schwartz, the outcome of the case will decide both “[h]ow companies can remain competitive without free access to basic [application programming interfaces]” and “how companies that own the code can still make money with free access.”