Panel Activity

Here is this month’s update on activity in cases pending before panels of the Federal Circuit where the cases involve at least one amicus brief. We keep track of these cases in the “Other Cases” section of our blog. Today, with respect to these cases we highlight five dispositions, three cases with new briefing, one recent oral argument, and two upcoming oral arguments.


Uniloc 2017 LLC v. Hulu, LLC

As we explained in our opinion summary, this case addressed the issue of whether the Patent Trial and Appeal Board may consider and deny proposed substitute claims during IPR proceedings for patent ineligibility pursuant to 35 U.S.C. § 101. The Court affirmed the Board’s decision and held that the Board may consider the eligibility of proposed substitute claims in IPR proceedings. Check out the case page to see all our coverage of this case, including our argument preview and argument recap.

Takeda Pharmaceuticals U.S.A v. Mylan Pharmaceuticals Inc.

As we explained in our opinion summary, two related cases that attracted amicus briefs, Takeda Pharmaceuticals U.S.A. v. Mylan Pharmaceuticals Inc. and Takeda Pharmaceuticals U.S.A. v. Alkem Laboratories Limited, both addressed whether the district court erred in denying a motion for a preliminary injunction based on a finding that there was no irreparable harm. The court affirmed the district court decision in both cases denying injunctive relief. Check out the case pages to see all of our coverage.

Bio-Rad Laboratories, Inc. v. 10X Genomics Inc.

As we explained in our opinion summary, this case addressed the validity of three patents, damages, and injunctive relief. First, court affirmed the validity and infringement of a first patent. Second, the court held that the district court erred in its construction of the other two patents and thus vacated the judgment and remanded. Third, the court affirmed the damages the district court awarded. Fourth, the court vacated the injunctions, but only with respect to two products in question. Check out the case page to see all of our coverage of this case, including our argument preview and recap.

National Veterans Legal Services Program v. United States

As we explained in our opinion summary, this case addressed the interpretation of a statute regarding Public Access to Electronic Records (PACER) fees. The court did not adopt the interpretations of either party but rather affirmed the district court’s understanding that PACER fees may be used for all Electronic Public Access (EPA) programs. The court also agreed that “the government is liable for the amount of EPA fees used to cover the Mississippi Study, VCCA Notifications, E-Juror Services, and most Courtroom Technology expenses.” Check out the case page to see all of our coverage of this case, including our argument preview and recap.

New Briefing

Amgen Inc. v. Sanofi, Aventisub LLC

This case concerns patent law’s enablement requirement with respect to antibody claims. In its opening brief, Amgen Inc. challenged “[w]hether the district court erred in holding that any reasonable juror was required to find that Sanofi-Regeneron established non-enablement by clear-and-convincing evidence.” In its response brief, Sanofi argued that, “[a]s a matter of law, Amgen’s patents were not enabled.” One amicus brief was filed in support of Amgen, and three have been filed in support of Sanofi.

Since our last update, Amgen has filed its reply brief. In it, Amgen asserts that, because “the facts and law support the jury’s enablement verdict—and [Sanofi] certainly has not shown that every reasonable juror would be compelled to find it disproved enablement by clear-and-convincing evidence—this Court should reverse.”

MLC Intellectual Property LLC v. Micron Technology, Inc.

This case concerns a district court’s rulings related to damages law and expert testimony. In its opening brief, MLC made several arguments for why the district court erred in excluding its damages expert. Four amicus briefs were filed, all in support of Micron.

Since our last update, MLC has filed its reply brief. In it, MLC contends that “Micron’s Responsive Brief, and the District Court’s . . . [decision], make it sound like MLC’s damages expert . . . endorsed a ridiculous damages number.” MLC asserts that “the Court misread [its expert’s] Report as offering an opinion he never offered” and those rulings “represent an abuse of discretion.” Further, its expert’s testimony, MCL maintains, was “reasonably derived from the record evidence.”

Omni Medsci, Inc. v. Apple Inc.

In this case, the Federal Circuit granted Apple’s motion for an interlocutory appeal to review the district court’s holdings with respect to an alleged standing problem. In its opening brief, Apple argued that “Omni does not have standing to sue for patent infringement because Omni does not own the patents-in-suit—and never did.” Apple contended that inventions created by Dr. Mohammed Islam were automatically the property of the University of Michigan by nature of Dr. Islam’s employment. The Regents of the University of Michigan filed an amicus brief in support of Apple.

Since our last update, Omni Medsci has filed its response brief. In it, Omni Medsci argues that to prevail Apple must prove that the relevant University of Michigan bylaw eliminates standing. In particular, Medsci contends that Apple must prove “(i) the patents-in-suit fall within Bylaw 3.10 ¶1—a fact question—and (ii) ¶1 automatically transferred legal title to UM—a legal issue.” But, Medsci argues, Apple “has no evidence to support its claim that the patents-in-suit fall within Bylaw 3.10 ¶1” and “the phrase ‘shall be …’ in Bylaw 3.10 assigns no rights.”

Argument Recap

Since our last report, the Federal Circuit has heard oral argument in a case that attracted an amicus brief. In Conversant Wireless Licensing v. Apple Inc., the court addressed the district court’s ruling that a patent was unenforceable based on an untimely disclosure to the European Telecommunications Standards Institute (ETSI). See our argument recap for a report on the oral argument.

Upcoming Oral Argument

Next month, panels will hear arguments in two cases that attracted amicus briefs.

Albright v. United States

In this takings case, Albright along with other landowners in Oregon present the following issue:

  • “Whether the five original conveyance deeds at issue granted easements or fee simple ownership to the railroad under Oregon law.”

Amarin Pharma, Inc. v. Hikma Pharmaceuticals USA

In this patent case, Amarin presents the following two issues to the court:

  1. “Whether the district court legally erred in its framework for evaluating objective indicia of non-obviousness, by (a) concluding that the claims were obvious before even analyzing the compelling objective indicia evidence, infusing its entire analysis with hindsight; and (b) improperly requiring Amarin to prove every objective indicia or have it count against non-obviousness.”
  2. “Whether the district court improperly applied a hindsight-based analysis on motivation to combine and reasonable expectation of success, causing it to ignore significant evidence cutting against Defendants’ case and shift the burden to Amarin to prove non-obviousness in an erroneous attempt to fill the evidentiary gaps in Defendants’ proof.”

We will provide argument previews for both cases next week.