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 a disposition in a takings case, a patent case attracting an amicus brief on the issue of the non-obviousness requirement, new briefing in a patent case challenging post-grant review proceedings as violating due process, and four recent oral arguments in cases raising questions related to patent, takings, and veterans law. Here are the details.


This past month the Federal Circuit issued an opinion in a takings case that attracted an amicus brief.

Albright v. United States

As we explained in our opinion summary, in this case owners of land in Oregon asserted that the United States Surface Transportation Board violated the Takings Clause of the Fifth Amendment by converting a railway easement to a recreational trail. The court affirmed the Court of Federal Claim’s conclusion that the federal government did not commit any taking under the Fifth Amendment. In particular, the courts agreed that, when the government converted a particular railroad line into a recreational trail, no taking occurred because at that time the plaintiffs-appellants did not have a property interest in the railroad line. Check out the case page to see all our coverage of this case, including our argument preview and argument recap.

New Case

Zaxcom, Inc. v. Lectrosonics, Inc.

In this case, Zaxcom appeals a decision by the PTAB that held its claims to be unpatentable. In its opening brief, Zaxcom makes four arguments. First, it argues that the Board wrongly rejected Zaxcom and their experts’ claim construction of the word “wearable.” Second, it asserts that there was no substantial evidence to support the Board’s factual findings that a “master timecode generator” existed in the asserted combination of the prior art. Third, it contends that the Board misconstrued the claims to be overly broad when making its findings for obviousness. Finally, it argues that the Board erroneously gave no weight to the EMMY nor the technical OSCAR awarded for the merits of an embodiment of the claimed invention.

Former Chief Judge Paul R. Michel filed an amicus brief supporting neither side. In it, he asserts that “the § 103 rulings-at-issue threaten to undercut patent law and its innovation-promoting goals.” He calls on the court to explicitly clarify its presumption-of-nexus precedents and encourages the court to sua sponte have this case taken en banc.

New Briefing

New Vision Gaming & Development, Inc. v. SG Gaming, Inc.

New Vision Gaming & Development 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. SG Gaming in response asserts that the claims of the patents in question are ineligible under 35 U.S.C. § 101 and that New Vision forfeited numerous arguments by not raising them before the Patent Trial and Appeal Board.

Since our last update, New Vision has filed its reply brief. In it, New Vision asserts that its claims are undisputed regarding the problematic nature of the PTAB as both adjudicator and financial executives. Further, it argues that its due process claims are not waived because the PTAB itself has no authority to decide the due process issue, a conclusion of non-waiver follows the relevant case law, and there is little doubt the PTAB would not have granted New Vision’s request for relief. Finally, New Vision argues the PTAB’s § 101 decision is erroneous and not supported by the PTO or the correct application of Supreme Court precedent.

Argument Recaps

Since our last report, the Federal Circuit has heard oral argument in four cases that attracted amicus briefs.

Amgen Inc. v. Sanofi, Aventisub LLC

In this patent case, the Federal Circuit considered the enablement requirement with respect to antibody claims. See our argument recap for a full report on the oral argument.

Rudisill v. Wilkie

In this veterans case, the Federal Circuit addressed whether the Court of Appeals for Veterans Claims misinterpreted 38 U.S.C. §§ 3322 and 3327 in holding that its provisions related to educational assistance benefits did not apply to Mr. Rudisill because he had multiple periods of qualifying service. See our argument recap for a full report on the oral argument.

The Modern Sportsman, LLC v. United States

In this case, the Federal Circuit considered whether the Bureau of Alcohol, Tobacco, Firearms and Explosives committed a taking under the Takings Clause of the Fifth Amendment when it required the abandonment or total destruction of lawfully acquired bump-fire type rifle stocks. See our argument recap for a full report on the oral argument.

MLC Intellectual Property LLC v. Micron Technology, Inc.

In this fourth case that attracted at least one amicus brief and was argued earlier this month, the Federal Circuit considered whether the district court erroneously excluded evidence of comparable license negotiations during a reasonable royalty analysis. See our argument recap for a full report on the oral argument.