This week is Court Week at the Federal Circuit, with hearings starting today. Due to the heightened spread of the coronavirus, all January oral arguments will again be held remotely. As it has for some time now, however, the Federal Circuit is providing access to live audio of each panel scheduled for argument via the Federal Circuit’s YouTube channel. In total, including a case set to be argued next week, the court will convene 12 panels to consider about 54 cases. Of these 54 cases, the court will hear oral arguments in 40. Of these argued cases, two attracted amicus briefs: one copyright case and one takings case. Here’s what you need to know about these two cases.
As explained in our argument preview, in this takings case the plaintiffs-appellants ask the court to reverse a Court of Federal Claims decision granting summary judgement for the United States. Numerous plaintiffs-appellants in a combined appeal have asserted takings claims against the government based on properties being flooded by the U.S. Army Corps of Engineers when the Addicks and Barker Reservoirs released water during Hurricane Harvey.
The opening brief for plaintiffs-appellants first argues Texas law grants a relevant property interest to the plaintiffs-appellants. In particular, they contend that the Federal Circuit “should hold that the Government took a flowage easement as a matter of law.” They maintain “the Government effected a temporary taking of a flowage easement by physically flooding the affected properties.”
The United States responds by arguing that “the CFC correctly ruled that Plaintiffs’ ownership of real property does not include an entitlement to perfect flood control in the wake of the unprecedented natural disaster.”
An amicus brief was filed by 205 plaintiffs with similar, stayed cases at the Court of Federal Claims.
Brian C. Toth will argue for the United States.
This argument is scheduled to take place on Wednesday, January 12, in (virtual) Courtroom 201 at 10:00 A.M. Eastern.
As explained in our argument preview, in this case, SAS Institute, Inc. appeals a decision from the Eastern District of Texas dismissing SAS’s claim of copyright infringement by World Programming Ltd.
In its opening brief, SAS argues “[t]he district court’s ‘copyrightability’ decision should be reversed because it incorrectly applied the filtration analysis.” Further, SAS claims, “[t]he district court erred by excluding SAS’s witnesses’ testimony.”
In its response brief, World Programming Ltd. contends that, “[u]nder Fifth Circuit law, plaintiffs asserting nonliteral infringement of a computer program must show protected elements were copied” and “[a] plaintiff’s failure to filter entitles the defendant to judgment.” Moreover, procedurally WPL argues “SASII’s failures to identify its protected expression entitled WPL to judgment as a matter of law.” WPL also contends the “district court properly excluded SASII’s only technical expert under Federal Rule of Civil Procedure 26 for failing to prepare his own report and disclose critical information.” Moreover, WPL argues, the “district court properly enforced an agreement” with a second witness permitting that witness “to testify only as a fact witness about disclosed topics.”
This case attracted ten amicus briefs.
Amicus briefs in support of the appellant, SAS, have been filed by Mathworks Inc. and Oracle Corporation; Ralph Oman, the former Register of Copyrights; Scholars of Copyright Law; the Copyright Alliance; a group of computer scientists; and Creator’s Rights Groups.
Amicus briefs in support of the appellee, WPL, have been filed by the Computer and Communications Industry Association; 44 Intellectual Property Law Scholars; 54 Computer Scientists; Github, Inc.; and the Electronic Frontier Foundation.
Dale M. Cendali will argue for SAS.
Jeffery A. Lamken will argue for the World Programming.
This argument is scheduled to take place on Thursday, January 13, in (virtual) Courtroom 402 at 10:00 A.M. Eastern.