Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today’s report highlights:
- a blog post arguing that “the Federal Circuit should release all dispositive orders on its website, not just decisions labeled as ‘opinions’ or summary affirmances under Rule 36”;
- an article discussing how “[p]atent owners are looking to past [forum selection clauses in] agreements they signed with the companies they are accusing of infringement to head off challenges at the U.S. Patent and Trademark Office”;
- another blog post discussing an opinion addressing whether “ATJs [Administrative Trademark Judges] [are] unconstitutionally appointed principal officers like their APJ cousins”; and
- an article observing “that the Federal Circuit’s interpretation of Federal Rule of Civil Procedure 8–the rule setting forth the pleading standards applicable to civil actions in federal court–in patent cases is hard to reconcile with modern U.S. Supreme Court precedent on Rule 8.”
Jason Rantanen wrote a post for PatentlyO explaining the Federal Circuit’s issuance of “two interesting orders in appeals from the USPTO,” but more specifically “that neither was posted to the Federal Circuit’s website.” Rantanen stated that, “in an age where lawyers, judges and scholars have come to think that all law (or at least, all appellate decisions) is easily accessible, [the orders] highlight that it’s not.” Ranatanen argued that “the Federal Circuit should release all dispositive orders on its website, not just decisions labeled as ‘opinions’ or summary affirmances under Rule 36.”
Perry Cooper authored an article for Bloomberg Law addressing how “[p]atent owners are looking to past [forum selection clauses in] agreements they signed with the companies they are accusing of infringement to head off challenges at the U.S. Patent and Trademark Office.” Cooper noted that the Federal Circuit “has touched on whether that’s appropriate in a handful of cases, but the rulings are fact-specific and aren’t all binding.” Moreoever, Cooper states, “[t]wo currently pending cases will give the Federal Circuit the chance to provide more guidance on these issues.”
Scott Skiles authored a post for BakerHostetler’s IP Intelligence Report commenting on the Federal Circuit’s recent precedential decision in Piano Factory Grp., Inc. v. Schiedmayer Celesta GmbH. Skiles explained that this opinion addresses whether “ATJs [Administrative Trademark Judges] [are] unconstitutionally appointed principal officers like their APJ cousins.” As explained by Skiles, the Federal Circuit held that “[b]ecause the ATJs are not appointed by the President and confirmed by the Senate . . . they have been unconstitutionally appointed.”
Deirdre M. Wells, William H. Milliken, and Dallin Glenn filed an article with Reuters using the Federal Circuit’s recent decision in BOT M8 LLC v. Sony Corporation “as a vehicle to make one observation and one prediction.” Regarding their observation, Wells, Milliken, and Glenn state that “that the Federal Circuit’s interpretation of Federal Rule of Civil Procedure 8–the rule setting forth the pleading standards applicable to civil actions in federal court–in patent cases is hard to reconcile with modern U.S. Supreme Court precedent on Rule 8.” Regarding their prediction, Wells, Milliken, and Glenn anticipate that, “if this issue makes it to the Supreme Court, the Court is likely to harmonize the application of Rule 8 in the patent-infringement context with the application of Rule 8 everywhere else.”