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 three dispositions, two upcoming oral arguments, and one case with new briefing. Here are the details.

Opinions and Orders

Since our last update, the Federal Circuit issued one opinion and two orders disposing of cases that attracted amicus briefs.

In re Samsung Electronics Co.

The Federal Circuit issued an order mandating that the “United States District Court for the Western District of Texas . . . transfer the underlying actions to the United States District Court for the Northern District of California.” The Computer and Communications Industry Association had filed an amicus brief in in this case in support of the petitioners. 

Lynch v. McDonough

Judge Prost authored the court’s opinion affirming the decision of the Court of Appeals for Veterans Claims in this case. The appellant asked the Federal Circuit to consider whether “the holding in Ortiz v. Principi misinterpret[ed] 38 U.S.C. § 5107(b) and 38 C.F.R. § 3.102 by setting forth an equipose-of-the-evidence [sic] standard for veterans to prove their claims and a corresponding preponderance-of-the-evidence-standard for the secretary to disprove them; and, if so, should principles of stare decisis be a bar to the en banc court overturning this three-judge panel decision?” According to the Federal Circuit, “[b]ecause we disagree with Mr. Lynch’s reading of Ortiz v. Principi, and because this court is bound by Ortiz, we affirm.” Judge Dyk concurred in part and dissented in part. In particular, he would have held that “Ortiz’s preponderance of the evidence standard is inconsistent with the plain text of 38 U.S.C. § 5107(b).” Military-Veterans Advocacy Inc., Swords to Plowshares, and the Connecticut Veterans Legal Center filed amicus briefs in support of the veteran-appellant.

Rolfingsmeyer v. Office of Personnel Management

In this case, Rolfingsmeyer asked the Federal Circuit to determine “[w]hether it is unlawful for the federal government to rely on a state’s concededly unconstitutional definition of marriage to deny survivor benefits to the surviving member of a long-term, committed same-sex couple who would have qualified for such benefits but for that unconstitutional definition of marriage.” The court, however, dismissed the appeal after the parties filed a stipulation of dismissal. The Services and Advocacy for Gay, Lesbian, Bisexual, and Transgender Elders and Human Right Campaign as well as James Obergefell, Michael Ely, and Anthony Gonzalez filed amicus briefs in support of the petitioner. 

Upcoming Oral Arguments

As we reported this morning, this month two cases that attracted amicus briefs will be argued.

Larson v. McDonough

In this veterans case, Larson presents the following issue:

  • “Did the Veterans Court err when it expanded the prohibition against judicial review of the VA Schedule of Rating Disabilities in 38 U.S.C. §7252(b) to encompass a BVA decision that obesity and Dysmetabolic syndrome (DMS) could not be disabilities under 38 U.S.C. §1110?”

See the argument preview for more information. 

Kannuu Pty Ltd. v. Samsung Electronics Co. 

In this patent case, Kannuu presents the following three issues: 

  1. “Whether in the instant action, the validity challenges brought by Samsung in the PTAB fall under the forum selection clause (‘FSC’) of the parties’ NDA because the validity challenges ‘relate to’ the discussions that the parties had under the NDA given that it is undisputed that the clause must be interpreted broadly under New York law, one of the issues in the IPRs is whether Samsung copied information that Kannuu shared with Samsung under the NDAs, and the parties’ discussions under the NDA concerned whether Samsung needed a license to the patents at issue in the IPRs.”
  2. “Whether public policy allows private parties to contractually agree to restrict the forum for disputes about patent validity to an Article III court rather than keeping open the option of the PTAB as an alternative forum.”
  3. “Whether this Court should remand with instructions to enter the injunction rather than merely remanding with instructions to reconsider the four factors given that none of the factors can possibly favor Samsung.”

See the argument preview for more information. 

New Briefing

Zaxcom, Inc. v. Lectrosonics, Inc.

In this case, Zaxcom appeals a decision by the Patent Trial and Appeal Board that its claims are unpatentable. As we have previously noted, former Chief Judge Paul R. Michel filed an amicus brief arguing that the the court’s decision in FOX Factory, Inc. v. SRAM, LLC added burdens on patentees in the context of the non-obviousness requirement that are not supported by the court’s precedent. US Inventor, Inc. also filed an amicus brief in support of Zaxcom.

Today’s update is that Andrew Hirschfield, Performing the Functions and Duties of the Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office, has filed a brief as an intervenor. 

Hirschfield presents three arguments in support of Lectrosonics. First, he argues that “[i]Issue preclusion prevents Zaxcom from arguing here that the Board misconstrued the term ‘wearable.’” Second, Hirschfield claims “[s]ubstantial evidence supports the Board’s determination that [prior art] discloses the claimed ‘master timecode generator’ and that it would have been obvious to include that feature.” Third, Hirschfield contends “substantial evidence supports the Board’s determinations regarding the obviousness of the original and substitute claims.” 

In support of Zaxcom, however, Hirschfield argues that “substantial evidence supports the Board’s finding that Zaxcom demonstrated a nexus between . . . substitute claims” and, therefore, “the Board’s reading of the evidence comports with the record and should be affirmed.”

Related to the amicus briefs, Hirschfield argues that “Fox Factory is consistent with this Court’s precedent and makes sense.”