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 in a veterans case appealed from the Court of Appeals for Veterans Claims, a patent case appealed from a federal district court, and a tax case appealed from the Court of International Trade. We also highlight a new patent case raising a question related to personal jurisdiction and service of process, along with a copyright case that attracted five new amicus briefs. Here are the details.


Since our last update, the Federal Circuit has issued three opinions in cases that attracted at least one amicus brief.

Larson v. McDonough

In this veterans case, Larson asked the Federal Circuit to overrule what he characterized as the Veterans Court’s prohibition on reviewing Board of Veterans Appeals decisions regarding the Department of Veterans Affairs Schedule of Disabilities. The panel reversed and remanded the case back to the Veterans Court because “the Veterans Court is not prohibited from reviewing Mr. Larson’s appeal of the Board’s determination that DMS and obesity were not disabilities under § 1110.” This case attracted an amicus brief filed by the National Veterans Legal Services Program and the National Organization of Veterans’ Advocates, Inc.

MLC Intellectual Property LLC v. Micron Technology, Inc.

In this patent case the Federal Circuit granted interlocutory review to consider a district court’s rulings related to damages law and expert testimony. MLC made several arguments. First, it argued that the district court improperly excluded its damages expert’s opinions based on the parol-evidence rule. Second, it argued that the district court usurped “the jury’s role as ultimate arbiter of factual disputes, by resolving disputes as to the competing evidence presented by the parties in Micron’s favor as part of its Daubert analysis.” Third, it argued that the district court imposed disclosure requirements “that are unsupported by the Federal Rules of Civil Procedure.” Fourth, it argued that the court erred in applying an apportionment standard that violates Federal Circuit precedent.

The panel “affirm[ed] the district court’s orders precluding MLC’s damages expert from characterizing certain license agreements . . . when MLC failed to produce key documents and information directed to its damages theory when requested prior to expert discovery.” This case attracted numerous amicus briefs in support of the district court’s holding.

National Association of Manufacturers v. Department of the Treasury

In this tax case, the Federal Circuit considered whether regulations promulgated by the Department of the Treasury to curtail “double drawback” (two tax refunds for the same exported merchandise) are invalid. 

The panel “affirm[ed] the judgment of the [Court of International Trade] that the Rule is unlawful” because statutory language requires “drawback of ‘any’ tax imposed on importation, ‘notwithstanding any other provision of law.’” According to the Federal Circuit, the government’s position would “render the ‘notwithstanding’ clause meaningless.” This case attracted an amicus brief from the Customs Advisory Services, Inc. in support of the Court of International Trade’s analysis.

New Case

This past month one new patent case attracted an amicus brief.

In re OnePlus Technology (Shenzhen) Co.

In its petition, OnePlus Technology (Shenzhen) seeks a writ of mandamus to require the district court “to dismiss this case for lack of personal jurisdiction.” According to OnePlus Technology (Shenzhen), “service pursuant to [Federal] Rule [of Civil Procedure] 4(f)(3) on OnePlus Shenzhen’s alleged U.S. agents fails to give the district court personal jurisdiction over OnePlus Shenzhen pursuant to the Texas long-arm statute.” This case has attracted an amicus brief in support of OnePlus Technology (Shenzhen) from TP-Link Technologies Co.

New Briefing

Since our last update, a copyright case attracted several additional amicus briefs.

SAS Institute Inc. v. World Programming Ltd.

In this case, SAS Institute appeals a district court ruling, claiming that the district court improperly applied copyright law’s “filtration analysis.” 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.” According to SAS Institute, “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.”

Most recently, five amicus briefs were filed in favor of World Programming.

  • The first amicus brief was submitted by the Computer and Communications Industry Association. It presents three arguments for affirmance. First, it argues that SAS Institute “failed to show. . .  any similarity between the code, structure, or user interfaces.” Second, it contends that “the plaintiff bears the ultimate burden of showing that what the defendant copied constituted protected expression.” Third, it maintains that “the district court correctly concluded” that SAS Institute “input formats and output designs to not constitute elements of protected expression.”
  • The second amicus brief was filed by 44 intellectual property law scholars. In it, they argue that copyright “should not be interpreted to give SAS indirect control over a computer language so many have learned to use.” They take this position because, they argue, “[l]imiting the scope of copyright protection for computer programs is essential to advancing the constitutional purpose of promoting progress.”
  • The third amicus brief was filed by 54 computer scientists. The thrust of their argument is that the “court below correctly concluded that SAS had failed to meet its burden to show that any protectable element” was copied. Moreover, they argue, “[a] contrary result could upend” the “longstanding driver of competition and innovation.”
  • The fourth amicus brief was submitted by Electronic Frontier Foundation. It highlights what it believes to be “a core fact” that the “case does not involve allegations of literal copying.” Instead, it explains, “this case concerns non-literal copying of functions of SAS’s program that serve as an interface between the computer and its human programmer.” In this scenario, it argues, “copyright law does not, and should not, grant statutory monopoly in these functional elements of a computer program.”
  • The fifth amicus brief was submitted by Github, Inc. It maintains that the plaintiff in this case, after “years of litigation,” has not “ever articulat[ed] a legally viable theory” for copyright infringement. Github, moreover, contends that, when “vague nonliteral copyright infringement allegations” threaten small developers, “the impact is felt across the whole developer ecosystem.”