- U.S. Wrongly Linked 3 Steel Companies In Duty Probe – The U.S. Department of Commerce improperly tied steel companies together in an anti-dumping investigation, said the Federal Circuit.
- All Substantial Rights Deemed Test Informative – With the decision in Immunex Corp. v. Sandoz Inc., the Federal Circuit endorses the “all substantial rights” test for the first time.
- Section 315(a) Calls At Institution Cannot Be Reviewed – Finally, the Federal Circuit applied the recent Supreme Court decision in Thryv, Inc. v. Click-to-Call Techs to a Section 315(a) and (b) case.
Here’s the latest.
Federal Circuit Says U.S. Wrongly Linked 3 Steel Companies In Duty Probe
Reported by Sarah Martinson on law360.com
This Wednesday in Prosperity Tieh Enterprise Co. v. United States, the Federal Circuit found that the U.S. Department of Commerce erroneously tied together three different Taiwanese steel companies in an anti-dumping investigation “finding that the department didn’t properly evaluate the relationships between the three companies.” Martinson explains:
The panel said that Commerce violated federal law by not assessing Prosperity’s relationship with Yieh Phui Enterprise Co. Ltd. or its relationship with Yieh and Synn Industrial Co. Ltd. as a joint entity in its 2016 final anti-dumping determination that assigned the companies a 10.34% duty rate. By not considering the relationships between all three companies, Commerce failed to consider the ‘totality of the circumstances’ when deciding whether the three companies could circumvent its anti-dumping duty orders by funneling exports through the entity with the lowest duty rate, the panel said, reversing the U.S. Court of International Trade’s 2018 ruling in the case.
For more information on this case, see our coverage.
“All Substantial Rights” Test Informative in Obviousness-Type Double Patenting Context
Reported by Jackie Toney on lexology.com
Returning to the Federal Circuits decision in Immunex Corp. v. Sandoz Inc., Toney provides a detailed explanation of the Federal Circuit’s obviousness decision and its impact on precedent. In this case, Sandoz successfully argued that the “all substantial rights” test should be applied “in the context of obviousness-type double patenting.” Following this decision, Toney details the Court’s reasoning:
The Federal Circuit agreed with Sandoz, endorsing for the first time the all substantial rights test to determine common ownership for the purpose of obviousness-type double patenting. The Court found that determining whether a party controlling patent prosecution was the ‘effective patentee’ under the all substantial rights test is consistent with the underlying rationales for obviousness-type double patenting: preventing unjustified patent term extensions and preventing harassment from multiple suits. However, the Court limited its holding, expressly stating that it was not importing into the doctrine of obviousness-type double patenting the entire body of 35 USC § 281 law regarding who is a statutory patentee.
For more information on this case, see our coverage.
Section 315(a) Calls At Institution Cannot Be Reviewed
Reported by Susan Gerber on jdsupra.com
Finally, in Ruiz Food Products, Inc. v. MacroPoint, LLC, the Federal Circuit applied the recent ruling in Thryv, Inc. v. Click-to-Call Techs to a request “to resolve whether the ‘no appeal’ provision also precludes appeal in a case where the PTAB found proceedings could not be properly instituted under 35 U.S.C. § 315(a).” Ultimately, Ruiz was fruitless in their attempt to sway the Federal Circuit in their favor. Gerber reported:
[T]he Federal Circuit found that, just like the situation in Thryv, institution decisions based on Section 315(b) are “clearly ‘a condition on” institution’ that may not be appealed. The court further declined to treat Ruiz’s appeal as seeking a writ of mandamus, finding that Ruiz had failed to establish any clear and indisputable right that would have precluded the PTAB from terminating proceedings. Moreover, the court was not willing to allow Ruiz sidestep the statutory prohibition on appeals from decisions not to institute IPR by styling its appeal as a petition for mandamus.
Moreover, following this decision, Gerber offered these insights drawn from this case:
This decision underscores the importance for petitioners to be mindful of the procedural bars in Section 315(a) and 315(b) and steer well clear of them, because the PTAB’s decision to not to institute IPR under these provisions cannot be appealed.
For more information on this case, see our coverage.