This morning, the Federal Circuit issued two precedential opinions in a patent case and a veterans case. The court also issued a nonprecedential order denying a petition for a writ of mandamus that would have directed a district court to stay proceedings. Here are the introductions to the opinions and text from the order.

Biogen MA, Inc. v. EMD Serono, Inc. (Precedential)

This appeal arises from a suit filed by Biogen MA, Inc. (“Biogen”) against EMD Serono, Inc. and Pfizer, Inc. (collectively “Serono”) in the District of New Jersey. The suit alleged contributory and induced infringement of Biogen’s U.S. Patent Number 7,588,755 (“’755 patent”) by the sale and marketing in the United States of Rebif, a recombinant interferon-β (“IFN-β”) product used for the treatment of Multiple Sclerosis (“MS”). After a five-week trial, a jury found that the ’755 patent claims were anticipated by two references teaching the use of native IFN-β to treat viral diseases: Kingham et al., Treatment of HBsAg-positive Chronic Active Hepatitis with Human Fibroblast Interferon, 19(2) Gut 91 (1978) (“Kingham”) and Sundmacher et al., Human Leukocyte and Fibroblast Interferon in a Combination Therapy of Dendritic Keratitis, 208(4) Albrecht von Graefes Archiv für Klinische & Experimentelle Opthalmologie 229 (1978) (“Sundmacher”). The jury also held the asserted claims not invalid for lack of enablement or written description, or for obviousness. Finally, the jury held that patients and prescribers directly infringed the asserted claims and that Serono contributorily infringed the claims but did not induce infringement thereof.

On cross-motions, the district court granted judgment as a matter of law (“JMOL”) of no anticipation in favor of Biogen and conditionally granted a new trial on anticipation. In re Biogen ’755 Patent Litig., 335 F. Supp. 3d 688 (D.N.J. 2018) (“Biogen I”). The district court also ruled in favor of Biogen: sustaining the jury’s verdict of no invalidity based on written description or enablement; overturning the verdict of no induced infringement; sustaining the verdict of contributory infringement; and holding that the ’755 patent claims were not patent ineligible. Id. Serono appeals the district court’s JMOL rulings on anticipation, written description, enablement, contributory infringement, induced infringement and patent eligibility. We have jurisdiction under 28 U.S.C. § 1295(a).

Because a reasonable jury could find the claims of the ’755 patent anticipated on the record presented in this case, we reverse the district court’s JMOL of no anticipation and its conditional grant of new trial on that ground. We remand with instructions to reinstate the jury verdict of anticipation. We need not and do not address the other grounds asserted on appeal.

Mote v. Wilkie (Precedential)

Mrs. Eugenia Mote appeals from the Court of Appeals for Veterans Claims’ (“Veterans Court”) dismissal of her mandamus petition alleging unreasonable delay by the Department of Veterans Affairs (“VA”) in resolving her benefits claim.

Mrs. Mote has been here before, under similar circumstances. She was one of nine consolidated appellants in Martin v. O’Rourke, 891 F.3d 1338 (Fed. Cir. 2018), where we replaced the Veterans Court’s test for evaluating an unreasonable-delay mandamus petition with the standard articulated in Telecommunications Research & Action Center v. FCC, 750 F.2d 70 (D.C. Cir. 1984) (“TRAC”). We remanded Mrs. Mote’s individual case to the Veterans Court to conduct a TRAC analysis in the first instance. But on remand, the Veterans Court failed to conduct such an analysis. We therefore remand, again, for it to do so.

In re Sand Revolution LLC (Nonprecedential Order)

In this patent infringement suit, the United States District Court for the Western District of Texas denied Sand Revolution LLC and Sand Revolution II, LLC’s (collectively, “Sand”) motion to stay the litigation pending a recently-instituted inter partes review of the same patent in the United States Patent and Trademark Office. Sand now petitions for a writ of mandamus directing the district court to vacate that order and to stay proceedings pending such review. Continental Intermodal Group – Trucking LLC opposes.


Sand has failed to satisfy this exacting standard. The district court’s ruling was cursory and this court could have benefited from further elaboration based on the traditional stay factors. Nevertheless, we are unable to say that the district court clearly overstepped its authority or that Sand has shown a clear and indisputable right to a stay under the circumstances presented. Moreover, Sand has not shown that it is irreparably harmed by having to face the burden and expense of going through the district court litigation. Cf. In re Roche Molecular Sys., Inc., 516 F.3d 1003, 1004 (Fed. Cir. 2008) (petitioner’s “hardship [and] inconvenience” in going through trial did not provide a basis for granting mandamus (citation omitted)).



The petition for a writ of mandamus is denied.