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 two recent oral arguments in a veteran’s case and a patent case, as well as three upcoming oral arguments in a patent case, veteran’s case, and a case concerning the jurisdiction of the Merit Systems Protection Board.
Since our last report, the Federal Circuit has heard oral arguments in two cases that attracted amicus briefs.
Lynch v. McDonough
In this veterans case, Lynch asked the Federal Circuit to overrule Ortiz v. Principi, a case setting forth the burden of proof by which veterans must prove their claims. See our argument recap for more details.
New Vision Gaming & Development, Inc. v. SG Gaming, Inc.
In this patent case, the Federal Circuit heard arguments that addressed whether the overall structure of post-grant review proceedings under the America Invents Act creates impermissible incentives for administrative patent judges that amounts to a due process violation. See our argument recap for a full report.
Upcoming Oral Arguments
Next month, three cases that attracted amicus briefs will be argued.
Mobility Workx, LLC v. Unified Patents, LLC
In this patent case, Mobility Workx presents the following issues:
- “Whether the unusual structure for instituting and funding AIA post-grant reviews violates the Due Process Clause in view of Tumey v. Ohio, 273 U.S. 510 (1927), and its progeny, which establish ‘structural bias’ as a violation of due process.”
- “Whether the Director’s delegation of his responsibility to make final unreviewable institution decisions to the same APJ’s who make the Final Written Decision violates the Administrative Procedures Act and/or the Due Process Clause of the Constitution.”
- “Whether subjecting the Pre-AIA ’417 Patent to an AIA Proceeding so fundamentally different from the post review proceedings that existed at the time Mobility’s inventors applied for and obtained their patent constitutes an unlawful taking of property.”
- “Whether the PTAB’s decisions should be vacated and remanded because the PTAB panel that decided the cases was unconstitutional under the Appointments Clause.”
- “Whether the PTAB’s holding of claims 1, 2, 4, and 5 unpatentable over Liu or Liu and Gwon should be reversed because its finding that Liu or Liu and Gwon teach or suggest a ghost-mobile node ‘triggering signals’ that are ‘required to allocate resources and initiate mobility on behalf of the mobile node’ is not supported by substantial evidence.”
Buffington v. Wilkie
In this veterans case, Buffington presents the following issue:
- “[W]hether the part of 38 C.F.R. § 3.654(b)(2) (regulation 3.654(b)(2)), limiting the resumption of payment of disability benefits to ‘the day following release from active duty if [a] claim for recommencement of payments is received within 1 year from the date of such release,’ is a valid exercise of the Secretary’s general rulemaking authority under 38 U.S.C. § 501(a) when: (1) the regulation conflicts with relevant statutes, which do not impose a one-year claim requirement that may result in disability compensation forfeiture . . . and (2) the regulation’s one-year claim requirement and resulting forfeiture do nothing to prevent duplication of disability compensation during periods of active service, the stated purpose of section 5304(c).”
Tao v. Merit Systems Protection Board
In this case concerning the jurisdiction of the Merit Systems Protection Board, Tao presents the following six issues:
- “Whether, for the purpose of a jurisdictional ruling prior to hearing, the Board erred in failing to consider whether Dr. Tao had engaged in protected activity under 5 U.S.C. § 2302(b)(9) (activity described therein is commonly referred to as ‘(b)(9)’ activity along with ‘(b)(8)’ activity).”
- “Whether, for the purpose of a jurisdictional ruling prior to hearing, the Board erred in determining that Dr. Tao lacked a reasonable belief that her disclosures evidenced a violation of law, rule, or regulation.”
- “Whether, for the purpose of a jurisdictional ruling prior to hearing, the Board erred in determining that Dr. Tao lacked a reasonable belief that her disclosures evidenced gross mismanagement, abuse of authority, a substantial and specific danger to public health or safety, or a gross waste of funds.”
- “Whether, for the purpose of a jurisdictional ruling prior to hearing, the Board erred by failing to address certain disclosures as included in Dr. Tao’s submissions to the Board.”
- “Whether, for the purpose of a jurisdictional ruling prior to hearing, the Board was correct in finding Dr. Tao had exhausted the administrative remedies of the Office of Special Counsel prior to her IRA appeal to the Board.”
- “Whether, for the purpose of a jurisdictional ruling prior to hearing, the relevant disclosures and protected activities were contributing factors to the relevant personnel actions. For the purpose of this jurisdictional ruling, this would simply require a showing that the Responsible Management Officials new of the disclosure or protected activity, and that the action was taken within a reasonable time thereafter.”