Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today’s report highlights an amicus brief urging the Supreme Court to hear a case challenging the retroactive application of inter partes reviews, a Federal Circuit decision on reprisal claims under the Whistleblower Protection Act, a lawsuit brought by Boeing to protect data in federal contracts, and a Federal Circuit decision allowing attorney fees following a settlement between parties.
At IPWatchdog, Rebecca Tapscott highlighted an amicus brief filed in Celgene Corp. v. Peter arguing “that the Supreme Court should grant Celgene’s petition . . . because the question of whether there is an unconstitutional taking in the retroactive application of inter partes reviews is a question that affects ‘thousands of patents and its resolution calls into question the constitutionality of a federal statute.'” According to Tapscott, the brief “explained that 64% of cases in which the PTAB reached a final decision resulted in all claims being found unpatentable, which ‘confirms that IPR proceedings are extremely hostile terrain for patentees.'”
Daniel Wilson filed an article with Law360 reporting that the Federal Circuit in Sistek v. Department of Veterans Affairs ruled that “[a] U.S. Department of Veterans Affairs whistleblower couldn’t pursue a reprisal claim under whistleblower law based solely on an allegedly retaliatory investigation.” As explained by Wilson, “[t]he [Whistleblower Protection Act] lists 11 specific personnel actions that can form the basis of a claim for corrective action.” Wilson notes that, according to Judge Stoll, “[r]etaliatory investigations are not on that list, and the way the statute is written indicates that was an intentional exclusion by Congress, as other sections of the law do address such investigations.”
Daniel Seiden reported for Bloomberg Law that “[t]wo defense contractors, Boeing Co. and Raytheon Co., are directly challenging the government in court, saying it violated data rules when it limited their ability to put restrictive markings on their vendor lists and other propriety information.” According to Seiden, “Boeing claims it is allowed to use markings on F-15 Air Force jet contract documents [to] warn third parties about unauthorized use,” but the government argues that “Boeing can’t show it retains trade secrets in data that it turns over to the Air Force fully knowing it isn’t required to maintain confidentiality.”
PatentlyO’s Dennis Crouch commented on the Federal Circuit’s recent decision in Keith Manufacturing Co v. Butterfield. As explained by Crouch, the original lawsuit between the two parties “officially ended with the filing a stipulation of dismissal with prejudice,” and “Butterfield subsequently moved for attorney fees.” Crouch notes that “[t]he district court rejected the request for fees — holding that a stipulation-of-dismissal without a court order does not count as a ‘judgment’ and that R.54(d) implicitly requires a ‘judgment’ as a prerequisite to awarding fees.” Crouch explained that the Federal Circuit reversed, holding that “‘judgment’ in the provision should be seen as including ‘dismissal.'”