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 one disposition in a veterans case, new briefs filed in two patent cases raising due process questions related to post grant review proceedings, four recent oral arguments in veterans and government contracts cases, and four upcoming oral arguments in patent, veterans, and takings cases.
This past month the Federal Circuit issued its opinion in a veterans case that attracted amicus briefs.
As we explained in our opinion summary, this case addressed the Veterans Court’s interpretation of class certification requirements. The Federal Circuit unanimously held that the petitioners did not meet the commonality requirement for class certification or suggest a path to meet the requirement. Thus, the Federal Circuit held that the petitioners did not demonstrate any error by the Veterans Court or show any reasonable basis for remand.
In this case, Mobility Workx argues that post grant review proceedings violate the Due Process Clause of the Constitution. Mobility Workx contends, for example, 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.”
Since our last update, Unified Patents filed its response brief. First, Unified Patents argues that Mobility Workx never raised its patentability arguments before the Board and thus waived its opportunity to do so. Second, it argues that, should the court decide to hear the arguments, substantial evidence supports the Board’s factual findings that claim 1 of the patent at issue was obvious. Finally, it maintains that Mobility Workx’s constitutional arguments must be denied because it failed to timely raise the issue before the Board and Federal Circuit precedent “confirms that initiating an [inter partes review] proceeding over a pre-AIA patent does not constitute a Fifth Amendment taking.”
Additionally, the Director of the Patent Office filed a brief as an intervenor. In it, he points out that Mobility Workx “devotes only a fraction of its briefing in this case to any argument relating to the patentability of its claims.” Rather, he maintains, Mobility “focuses on alleged constitutional defects in the administrative proceeding” that he argues is based on Mobility Workx’s “misunderstanding of both due process principles and the USPTO’s compensation practices.”
Similar to the previous case, here New Vision Gaming & Development also contends that the overall structure of post-grant review proceedings 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.
Since our last update, SG Gaming filed its response brief. In it, SG Gaming first asserts that the claims of the patents in question are ineligible under § 101. Further, it maintains that New Vision forfeited numerous arguments by not raising them before the Patent Trial and Appeal Board, including its Due Process and other constitutional claims. Finally, SG Gaming argues that, even if the court decides to reach the due process issue, New Vision’s challenge is meritless because it fails to explain exactly how the APJ incentive system produces bias.
Since our last report, the Federal Circuit has heard oral argument in four cases that attracted amicus briefs.
In this case, the Federal Circuit addressed the Department of Veterans Affairs interpretation of the “printing mandate” in 44 U.S.C. § 501 to route a VA procurement through the Government Publishing Office, and whether that decision violated the “Rule of Two” statutory preference for veteran-owned small businesses. See our argument recap for a full report on the oral argument.
In this case, the Federal Circuit considered whether the Armed Services Board of Contract Appeals erred in holding that the Defense Federal Acquisition Regulation Supplement 252.227-7013 precludes government contractors from marking technical data delivered to the Government in a certain way. See our argument recap for a full report on the oral argument.
This is a case involving separate issues but the same parties as mentioned above. In this case, the Federal Circuit addressed issues regarding delays in deciding veterans claims and whether such delays amount to a violation of the Due Process Clause. See our argument recap for a full report on the oral argument.
In this case, the Federal Circuit addressed the legal standard for reviewing what facts are before the Veterans Board, and the scope of the Veterans Court’s review in developing the record of relevant facts. See our argument recap for a full report on the oral argument.
Upcoming Oral Argument
Next month, four cases that attracted amicus briefs will be argued.
In this patent case, Amgen presents the following issue:
- “Whether 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 this patent case, MLC Intellectual Property presents the following issues:
- “Did the district court err in excluding evidence of comparable-license negotiations under the parol-evidence rule in a Georgia-Pacific analysis and the resulting royalty opinions?”
- “Did the district court err in adopting an evidentiary standard contrary to the Federal Rules to require disclosure of expert and privileged information during fact discovery?”
- “Did the district court err in resolving factual disputes as a matter of law under Daubert rather than leaving them for the jury?”
- “Did the district court err in requiring further apportionment of the royalty base within a single-component device based on the functionality of the component?”
In this veterans case, Rudisill presents the following issue:
- “Whether the Court of Appeals for Veterans Claims (Veterans Court) misinterpreted the plain language of 38 U.S.C. §§ 3322 and 3327 in holding that the election provisions expressly contained therein do not apply to Mr. Rudisill because he had multiple periods of qualifying service.”
In this takings case, The Modern Sportsman presents the following issues:
- “Whether the Government commits a categorical physical taking when it uses its legislative authority to require the abandonment or total destruction of lawfully acquired personal property.”
- “Whether the Government commits a categorical regulatory taking when it uses its legislative authority to require the abandonment or total destruction of lawfully acquired personal property.”
We will provide argument previews for these cases next week.