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 patent cases in the “Other Cases” section of our blog. Today, with respect to these cases we highlight two dispositions, three new cases that attracted amicus briefs, two recent oral arguments, and one upcoming oral argument.
This past month the Federal Circuit issued two judgments in patent cases that attracted amicus briefs.
As we explained in our opinion summary, this case addressed questions of whether health insurance companies may recover cost-sharing payments identified in section 1402 of the Affordable Care Act (ACA) but never funded by Congress. The panel unanimously affirmed the judgment of the Court of Federal Claims that the Affordable Care Act “provision on reimbursement of cost-sharing reductions is ‘money-mandating’ and that the government is liable for money damages for its failure to make reimbursements for the 2017 reduction,” Check out the case page to see all our coverage of this case, including our argument preview and argument recap.
As we explained in our argument recap, this case addressed issues regarding non-obviousness, specifically whether the district court erred in infusing its analysis with hindsight and improperly shifted the burden to Amarin to prove non-obviousness. The day following the oral argument, the Federal Circuit granted a Rule 36 summary affirmance of the district court’s decision. Check out the case page to see all our coverage of this case.
Since our last update, we highlight three new patent cases that have attracted amicus briefs.
In this case, New Vision appeals two decisions by the USPTO in covered business method reviews. In its opening brief, New Vision contends that the overall structure of post-grant reviews under the America Invents Act (AIA) “creates impermissible incentives for the PTAB, its leadership, and the individual administrative patent judges (‘APJs’)” and that such temptation violates the Due Process Clause. Specifically, it argues that Due Process requires an impartial and disinterested tribunal, but the “inherent tie between the PTAB’s institution decisions of AIA reviews and the substantial revenue generated by those decisions . . . has created a structural bias unlike any other in the federal executive branch.”
US Inventor, Inc. filed an amicus brief in support of New Vision. First, in arguing that the PTAB system violates due process, it points to the “October Effect,” which it explains is when “APJs change their judging standards at the end and beginning of each evaluation period.” Second, it contends that the subjectivity of APJ evaluations could lead a reasonable person to “question whether the PTAB invalidates patents so frequently because its constituent APJs try to please their budget-minded bosses through revenue-enhancing decision making.”
In this case, Mobility Workx appeals a decision of the USPTO and likewise makes arguments that the IPR procedural system violates the Due Process Clause. Following similar language from the opening brief in New Vision Gaming, Mobility Workx in its opening brief contends that the “inherent tie between the PTAB’s decisions to institute and the substantial revenue generated by those decisions . . . has created a structural bias unlike any other in the federal executive branch.” Further, it argues that “[t]he structural bias is magnified by an APJ’s lack of judicial independence.” It asserts that APJ performance reviews that depend in part on productivity create a “structural bias inherent in the AIA institution decisionmaking process.”
US Inventor, Inc. filed an amicus brief in this case as well. In the brief, it puts forth the same two arguments as in New Vision Gaming, that the alleged “October Effect” and subjectivity of APJ performance standards both support the conclusion that the current post-grant system under the AIA violates due process.
This case arises from Google’s petition for a writ of mandamus against the district court in a case between Google and Personalized Media Communications LLC. In the petition, Google contends that this is “another case in which a district court in the Eastern District of Texas has misconstrued 28 U.S.C. § 1400(b), accepted a plaintiff’s strained venue theory, and failed to dismiss or transfer a case in which venue is improper.” Google petitions the court to address whether a “third party’s facility qualif[ies] as a ‘regular and established place of business’ of Google within the Eastern District” based on “Google’s arms-length contract with a third-party service provider under which that company refurbishes Google devices at the provider’s own facility in the district.” Google also asks the Court to “stay all district-court proceedings while it considers this petition.”
In its response brief, Personalized Media asserts that “[t]he evidence revealed in this case demonstrates that venue over Google is unquestionably proper.” It contends that Google deliberately contracted with Communications Test Design, Inc. (CTDI) to receive, service, store, and send devices to its customers at a facility within the District. And since Google allegedly controls every aspect of CTDI’s services, Personalized media argues that venue in the Eastern District of Texas was proper.
In its reply, Google contends that the district court’s decision is far from “a fact-bound application of settled law,” as Personalized Media suggests, but rather “breaks new legal ground and . . . would radically expand the scope of the patent venue and service statutes.”
The App Association, Acushnet Company, Check Point Software Technologies, Datastax, Fitbit, L Brands, Netflix, Ring Central, Unified Patents, and Vizio together filed an amicus brief in support of Google. In it, they argue that the district court’s decision “obliterates the distinction this Court made between ‘business of the defendant’ and ‘ancillary’ services,” and that in light of instability caused by the decision that mandamus is warranted.
Since our last report, the Federal Circuit has heard oral argument in two cases that attracted amicus briefs.
In this case, the Federal Circuit addressed the holding by the Court of Federal Claims that certain “deeds conveyed fee simple title from Plaintiffs’ predecessors-in-interest to the railroads, such that Plaintiffs have no compensable property interest on which to base takings claims.” See our argument recap for a report on the oral argument.
As stated above, the Federal Circuit heard oral argument for this case involving a district court’s judgment of obviousness based on alleged erroneous use of hindsight reasoning. Immediately following the oral argument, the Federal Circuit issued a Rule 36 summary affirmance. See our argument recap for a report on the oral argument.
Upcoming Oral Argument
Next month, one case that attracted an amicus brief will be argued.
In this case, Trimble presents the following three issues to the court:
- “Did the district court err in concluding that it cannot exercise personal jurisdiction over PerDiemCo even though (a) PerDiemCo expressly and repeatedly accused Trimble, a company based in northern California, of infringing PerDiemCo’s patents; (b) the district court itself recognized that Appellants had established the minimum contacts necessary for personal jurisdiction; and (c) PerDiemCo failed to establish a ‘compelling case that the presence of some other considerations would render jurisdiction unreasonable,’ as required by Burger King v. Rudzewicz, 471 U.S. 462 (1985)? ”
- “Did Red Wing Shoe compel the district court’s conclusion that it cannot exercise jurisdiction over PerDiemCo, despite the Supreme Court’s opinions in Burger King and Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017), and this Court’s recognition of Red Wing Shoe’s limits in Jack Henry & Associates, Inc. v. Plano Encryption Technologies LLC, 910 F.3d 1199 (Fed. Cir. 2018), and Genetic Veterinary Sciences, Inc. v. LABOKLIN GmbH, 933 F.3d 1302 (Fed. Cir. 2019)?”
- “If adherence to the Red Wing Shoe line of cases would compel affirmance of the district court’s ruling, should this Court overrule those cases as imposing rigid, patent-specific rules that are contrary to controlling Supreme Court law and unwarranted by the public-policy justifications cited in Red Wing Shoe?”
We plan to post an argument preview for this case prior to the oral argument.