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 three dispositions in patent cases addressing estoppel related to inter partes review, anticipation, and induced infringement; new briefing in another patent case related to standing; one recent oral argument in a patent case addressing personal jurisdiction; and four upcoming oral arguments in veterans and government contracts cases.


This past month the Federal Circuit issued three opinions in patent cases that attracted amicus briefs.

Network-1 Technologies, Inc. v. Hewlett-Packard Company

As we explained in our opinion summary, in addition to run-of-the-mill claim construction disputes, this case addressed whether a party was estopped from presenting an obviousness challenge because it could have but did not raise that challenge during a prior inter partes review. The panel unanimously held that the party was not estopped from presenting the obviousness challenge, and thus vacated the district court judgment. Check out the case page to see all our coverage of this case, including our argument preview and argument recap.

Biogen MA Inc. v. EMD Serono, Inc.

As we explained in our opinion summary, this case involved issues related to anticipation. The panel unanimously held that a method claim was anticipated by the prior art because a product-by-process claim element did not result in something new, and that the district court erred in failing to consider whether the product created by the process and the prior art were identical. The Federal Circuit found that the jury had sufficient evidence to hold that the product and the prior art were identical due to explicit definitions in the claims. Check out the case page to see all our coverage of this case, including our argument preview and argument recap.

GlaxoSmithKline LLC v. Teva Pharmaceuticals USA, Inc.

As we explained in our opinion summary, this case involved issues related to induced infringement. Judges Newman and Moore found that there was enough evidence for a jury to find induced infringement and thus vacated the district court’s grant of JMOL finding no induced infringement. Chief Judge Prost filed a thirty-three page dissent arguing that the majority’s decision undermined the balance of introducing generic drugs into the market as soon as possible. Check out the case page to see all our coverage of this case.

New Briefing

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.” In its response, Omni Medsci argued that Apple must prove that the relevant University of Michigan bylaw eliminates standing. But, Omni maintained, 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.” This case attracted an amicus brief from the Regents of the University of Michigan supporting Apple’s position.

Since our last update, Apple has filed its reply brief. Apple argues that Omni’s response brief attempts to convert the issue into a factual determination of the University bylaws when the issue is a legal determination of contract interpretation reviewed by the court de novo. Further, it argues that “Omni ignores that Dr. Islam’s operative contract expressly provides that Bylaw 3.10 ‘govern[s] the assignment of property rights’ and that Dr. Islam, by that agreement, agreed that such property rights ‘shall be’ the University’s if they are supported by any UM funds.” Furthermore, Apple asserts that adopting Omni’s interpretation needlessly threatens existing contracts between Universities and researchers and could have sweeping implications.

Argument Recap

Since our last report, the Federal Circuit has heard oral argument in one case that attracted an amicus brief. In Trimble Inc. v. PerDiemCo LLC, the Federal Circuit addressed a district court’s dismissal of a declaratory judgment action based on lack of personal jurisdiction over the defendant-patent owner. See our argument recap for a full report on the oral argument.

Upcoming Oral Arguments

Next month, four cases that attracted an amicus brief will be argued.

Euzebio v. Wilkie

In this veterans case, Euzebio presents the following issues:

  1. Whether “[t]he Veterans Court’s ‘direct relationship’ requirement is an erroneous legal standard for determining what facts are before the Board because it excludes relevant matters that are known or should be known to the Board.”
  2. Whether “the Veterans Court erred in holding that it lacks the legal authority to look at relevant facts known to the agency for purposes of reviewing the Board’s decision.”
  3. Whether “the Veterans Court misinterpreted the scope of VA’s duty to assist when it affirmed VA’s failure to develop the record with relevant facts concededly known to the agency.”

Monk v. Wilkie

In this veterans case, Monk presents the following issues:

  1. “Did the CAVC misinterpret 38 U.S.C. § 7261(a)(2) in holding that a five-year delay in deciding a disabled veteran’s administrative appeal does not amount to an unreasonable delay.”
  2. “Did the CAVC misinterpret and misapply the Fifth Amendment Due Process Clause in holding that such a five-year delay does not violate the veteran’s due process rights.”
  3. “Did the CAVC misinterpret the mootness standard in dismissing certain Appellants’ claims.”

The Boeing Company v. Secretary of the Air Force

In this government contract case, Boeing presents the following issue:

  • “Whether the ASBCA erred in holding that DFARS 252.227-7013 precludes government contractors from marking technical data delivered to the Government in a manner that (a) recognizes the Government’s unlimited rights in the data, (b) does not restrict or impair the Government’s rights, and (c) restricts only the rights of third parties to use the data absent permission from the contractor or the Government.”

Veterans4You LLC v. United States

In this veterans case, Veterans4You presents the following issues

  1. “Whether the printing mandate of 44 U.S.C. § 501 applies to the imprinted gun locks, keys and wallet cards required by the Solicitation.”
  2. “Whether the VA adequately explained and documented its reasons for using the GPO to conduct the Solicitation.”
  3. “Whether the CFC erroneously concluded that because the Solicitation was conducted by the GPO and not the VA, the VA was not required to conduct a Rule of Two analysis under 38 U.S.C. § 8127(d) and instead 38 U.S.C. § 8127(i) merely required the VA to request the GPO to comply with the Rule of Two ‘to the maximum extent feasible.’”
  4. “Whether the CFC properly concluded that the Rule of Two and printing mandate are not in conflict despite the invocation of the printing mandate resulting in complete non-adherence to the Rule of Two.”
  5. “Whether the CFC properly concluded that the GPO had reasonably complied with its own regulations and the VA’s request to adhere to the Rule of Two ‘to the maximum extent feasible.’”

We will provide argument previews for these cases next week.