Here is an 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 recent dispositions in two patent cases and a case appealed from the Merit Systems Protection Board, a copyright case attracting two amicus briefs, new briefing (including a second amicus brief) in a patent case, and two recent oral arguments in a patent and a veterans case. Here are the details.
Opinions and Orders
This past month, the Federal Circuit issued two opinions and one order disposing of cases that attracted amicus briefs.
In this case, the court received an amicus brief arguing that the Patent Trial and Appeal Board “trial system violates due process.” Judge Moore authored a brief majority opinion vacating and remanding two decisions by the Patent Trial and Appeal Board based only on the Appointments Clause. Judge Newman concurred in part and dissented in part, but also did not address the alleged due process violation. For more details, see our opinion summary.
The amicus brief in this case argued that Red Wing Shoe Co. v. Hockerson-Halberstadt, Inc. “held that patent licensing demand letters can never suffice to create personal jurisdiction over asserters of those patents” and “is inconsistent with controlling Supreme Court precedent.” Judge Dyk authored a unanimous panel decision reversing and remanding the district court’s decision not to assert personal jurisdiction over PerDiemCo. In the court’s view, its “more recent cases have concluded that, in the context of patent litigation, communications threatening suit or proposing settlement or patent licenses can be sufficient to establish personal jurisdiction.” For more details see our opinion summary.
As we reported, in this case Tao presented several arguments challenging the Merit Systems Protection Board’s dismissal of her individual right of action appeal, which alleged violations of the Whistleblower Protection Enhancement Act of 2012. The U.S. Office of Special Counsel filed an amicus brief in support of Tao. Agreeing with Tao, a panel of the court reversed in part, vacated in part, and remanded the case.
SAS Institute appeals a district court ruling, claiming that the district court improperly applied copyright law’s “filtration analysis.” In its opening brief, SAS Institute explains that, under the filtration analysis, “it is the defendant’s burden . . . to show that what it copied is unprotectable under one or more [relevant] limiting doctrines.” SAS Institute argues “[e]iither the district court erred by failing to follow Rule 56 and find no genuine issues of material fact . . . , or it erred under Rule 52 by failing to make findings of fact or conclusions of law with regard to filtration.” According to SAS Institute, [i]n either case, when the court determined it did not have sufficient facts to determine what the unprotectable elements that [the defendant] copied were, it was required to treat the copied elements as protectable and allow the jury to compare the works.” SAS Institute also argues “[t]he district court erred by excluding SAS’s witnesses’ testimony.”
Two amicus curiae briefs were filed in favor of SAS Institute.
- The first amicus brief was submitted by Mathworks, Inc. and Oracle Corp. They argue that “[t]he district court erred here in holding that a showing that some material may be unprotected [under copyright law] was sufficient to shift the entire burden back to plaintiff” to prove that the work includes protectable material.
- The second amicus brief was filed by Ralph Oman, a former Register of Copyrights. In it, he argues “computer programs are literary works entitled to full copyright protection,” that “works that are registered with the Copyright Office are entitled to a presumption of validity,” and that “the district court effectively afforded computer programs lesser protection that other literary works and failed to property apply the presumption of validity.”
In this patent case, Kannuu appeals a district court’s denial of its motion to enjoin Samsung from pursuing inter partes review based on a forum selection clause. As we previously reported, Kannuu received support in the form of an amicus brief filed by several law professors. Since our last post about this case, there have been multiple filings.
First, Samsung filed its response brief. In it, Samsung argues that the district court properly denied the injunction because Kannuu failed to meet the four factors required to merit a preliminary injunction. Notably, Samsung contends, Kannuu will not face any legal hardship without the injunction as there is “no legally cognizable harm from having the PTAB . . . find that a patent is invalid.” Additionally, Samsung argues, reading the forum selection clause broadly to apply to IPR would be improper because federal patent policy requires, at a minimum, a clear statement of the parties’ intent to foreclose rights to IPR.
Second, Samsung has now attracted an amicus brief by a different group of law professors. These law professors argue that the district court’s decision should be affirmed because “forum selection clauses cannot bar parties from [inter partes review] proceedings absent a compelling countervailing interest” weighing against interests in “socially valuable IPR petitions” filed by “businesses best suited to challenge patent validity.”
Third, Kannuu filed its reply brief. In it, Kannuu maintains that there are gaps in Samsung’s argument where it does not dispute certain relevant points. Kannuu then contends that Samsung’s response is at direct odds with New York state law, which allegedly supports a broad interpretation of the phrase “relating to.” Kannuu further rejects Samsung’s proposal for a “clear statement” rule, maintaining that Samsung waived the argument and that, regardless, the forum selection clause meets any such rule.
Since our last report, the Federal Circuit has heard oral argument in two cases that attracted amicus briefs.
In this patent case, the Federal Circuit heard argument regarding an appeal from the Patent Trial and Appeal Board in which the appellant questioned whether inter partes review violates the Constitution’s due process and takings clauses. See our argument recap for a full report on the oral argument.
In this veterans case, the Federal Circuit heard argument on the question of whether the Secretary of Veterans Affairs exceeded his statutory authority when promulgating a regulation related to the timing of resumption of disability benefits payments following a period of active military service. See our argument recap for a full report on the oral argument.