Court Week

This week is Court Week at the Federal Circuit. As in the past several months, the court will hear its oral arguments telephonically given the coronavirus pandemic. Notably, however, this month the Federal Circuit is providing access to live audio of each panel scheduled for argument via the Federal Circuit’s YouTube channel rather than via telephone conference calls as in past months. In total, the court will convene 16 panels to consider about 61 cases. Of these 61 cases, the court will hear oral arguments in 41. Of the argued cases, two attracted amicus briefs: one a veterans case and one a patent case. Here’s what you need to know about these two cases.

Lynch v. McDonough

As discussed in our argument preview, in this veterans case, Lynch asks the Federal Circuit to overrule its decision in Ortiz v. Principi, a case that sets forth the burden of proof by which veterans must prove their claims. According to Lynch, Ortiz misinterpreted “38 U.S.C. § 5107(b) and 38 C.F.R. § 3.102 by setting forth an equipo[i]se-of-the-evidence standard for veterans to prove their claims and a corresponding preponderance-of-the-evidence-standard for the secretary to disprove them.”

In response, the Secretary urges the court to affirm the decision on appeal. According to the Secretary, “Lynch’s argument that Ortiz misinterpreted section 5107(b) (benefit of the doubt rule) is based on a misreading of the decision itself.” The Secretary also contends that “Lynch has failed to overcome the presumption in favor of adhering to prior precedent, particularly involving non-constitutional issues, and he has not demonstrated why the Court should revisit its decision.”

Military-Veterans Advocacy Inc. and Swords to Plowshares and Connecticut Veterans Legal Center filed amicus briefs in support of Lynch.

Mark Lippman will argue for Lynch.

Evan Wisser will argue for the Secretary.

This argument is scheduled to take place on Thursday, April 8 at 10:00 A.M. Eastern.

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

In this patent case, as discussed in our argument preview, New Vision appeals two decisions by the Patent Trial and Appeal Board in covered business method reviews. In particular, New Vision contends the overall structure of post-grant review proceedings under the America Invents Act “creates impermissible incentives for the PTAB, its leadership, and the individual administrative patent judges (‘APJs’)” and that such temptation violates the Due Process Clause of the Constitution. It also argues that the PTAB “abdicated its obligation to exercise its discretionary authority in the face of [a] contractual obligation to not bring a PTAB challenge,” and that the APJs were unconstitutionally appointed. It also maintains that the PTAB erred in finding ineligibility. 

In response,  SG Gaming 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. 

The USPTO as an intervenor argues that, “in failing to raise such objections during administrative proceedings, New Vision forfeited its claims that the post-grant review proceedings were structurally biased in violation of the Due Process Clause and that the APJs were invalidly appointed under the Appointments Clause.”  The USPTO also asserts that the court should “reject New Vision’s claim that APJs have an impermissible structural bias in favor of institution.” 

US Inventor, Inc. filed an amicus brief in support of New Vision.

Nathan K. Kelley will argue for SG Gaming.

Dana Kaersvang will argue for the USPTO.

Matthew J. Dowd will argue for New Vision.

This argument is scheduled to take place on Friday, April 9 at 10:00 A.M. Eastern.