This week, the Federal Circuit has assigned about 67 cases to 16 panels. That said, given the ongoing coronovirus pandemic, only 10 panels will hear arguments and only in about 20 cases. Moreover, all of these arguments will be held telephonically, with live online access to each of these arguments. Of these 20 cases, only one attracted an amicus brief. We provide more details here regarding the court’s approach to court week this month and the one case attracting an amicus brief.
Live, Online Telephonic Oral Arguments and Other Modifications to Court Operations
As part of the Federal Circuit’s response to ongoing public health concerns, the court has implemented several temporary modifications to its operations. Last week the court announced that “the court will be providing media and public access to the live audio of each panel scheduled for argument during the April 2020 session.” The court explained that “[b]y 9 a.m. (EDT) the morning of each day of argument, the Clerk’s Office will post on its website dial-in numbers that members of the media and the public can use to access the live audio of each panel scheduled for argument that day.” In addition to holding only telephonic oral arguments in a small number of cases, the court modified its filing and service procedures and gave new guidance to counsel concerning the scheduling of future court hearings. We previously described these modifications on this blog.
Only one of the 20 cases with telephonic oral arguments this week attracted an amicus brief. This case, Bio-Rad Laboratories, Inc. v. 10X Genomics Inc., attracted attention from an interested third party because the district court imposed an injunction that, in the words of the amicus brief, “limits the use of technology essential to ambitious biomedical research efforts currently being undertaken.”
As previewed on this blog, the appellant, 10X Genomics Inc., presented five issues for the court to review, covering aspects of literal infringement, infringement under the doctrine of equivalents, claim construction, damages, and injunctive relief. Specifically, 10X argues that prosecution history estoppel and claim vitiation prevent Bio-Rad Laboratories, Inc. from asserting infringement under the doctrine of equivalents. 10X also argues that Bio-Rad’s expert admitted to differences between Bio-Rad’s and 10X’s products, preventing a claim of infringement. Along these same lines, 10X argues that a claim preamble is limiting, resulting in no literal infringement. Regarding damages, 10X maintains that alleged comparable licenses were not actually comparable, and that Bio-Rad’s damages theory did not apportion the reasonable royalty to the value of the patented technology. Lastly, 10X argues that the injunction granted by the district court should be vacated because Bio-Rad did not prove irreparable harm in the absence of an injunction. In opposition, Bio-Rad argues that the arguments 10X presents to the Federal Circuit are the same arguments that an experienced district judge found unpersuasive.
This case, and in particular the last issue presented to the Federal Circuit, attracted an amicus brief filed by the Broad Institute of MIT and Harvard. The Institute argues that the Federal Circuit should reject any injunction in this case.
E. Joshua Rosenkranz will argue on behalf of 10X.
Edward R. Reines will argue on behalf of the Bio-Rad.
This case is scheduled to be argued on Friday, April 10, at 10:00 A.M.