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 an opinion in a tax case addressing subject matter jurisdiction and “duly filed” requirements, a new patent case about prosecution laches that attracted an amicus brief, and an upcoming oral argument in a case appealed from the Patent Trial and Appeal Board. Here are the details.


Since our last update, the Federal Circuited issued an opinion in a tax case that attracted an amicus brief.

Brown v. United States

In this case, the Federal Circuit considered whether the lower court lacked subject matter jurisdiction, and whether a tax refund is “duly filed” in the absence of a taxpayer’s signature on a tax return. The panel affirmed the decision of the Court of Federal Claims, stating that the suit was “properly dismissed.” The Federal Circuit explained that, while “the Claims Court erred in holding that the Browns’ claim for refund was jurisdictional, . . . it was harmless error because the Browns failed to meet the ‘duly’ filed’ requirements.” For more on the opinion, check out our opinion summary.

New Case

One new patent case attracted an amicus brief.

Personalized Media Communications, LLC v. Apple Inc.

In this case, Personalized Media Communications appeals the district court’s decision to overturn a jury verdict by applying “the equitable doctrine of prosecution latches.” In its opening brief, Personalized Media Communications argues the district court’s decision was an abuse of discretion with respect to both the finding of “unexpected delay in prosecution” and the conclusion “that Apple met its burden of establishing . . . prosecution laches.” Fair Inventing Fund filed an amicus brief supporting Personalized Media Communications and reversal of the district court’s ruling. In its brief, Fair Inventing Fund asserts that “declaring a duly-issued patent unenforceable is an extreme sanction” and the facts in this case “do not warrant the harsh sanction.”

Upcoming Oral Argument

Next month, one case that attracted amicus briefs will be argued.

Zaxcom, Inc. v. Lectrosonics, Inc.

In this patent case, Zaxcom, Inc. presents the following four issues:

  1. “Whether the Board erred by rejecting Petitioner’s own expert’s claim construction of ‘wearable’ in the Patents’ context as ‘unobtrusive and easily hidden’ (like performer bodypacks are), and further erred by rejecting a construction that a device is ‘wearable’ only if smaller (not larger) than the device identified by both applicant and examiner during prosecution (Nagra V) as too big to be ‘wearable.’”
  2. “Whether the Board erred by finding the prior art combination disclosed the construed ‘master timecode generator,’ in the absence of substantial (or any) evidence that the prior art, singly or in combination, disclosed any purported ‘master’ controlling any local audio device’s timecode generator in any way.”
  3. “Whether the Board erred by misconstruing the claims to be broad enough to cover both a Dropout Embodiment and a Multitrack Embodiment, and by misconstruing the claims to be broad enough so that the two types of ‘audio data’ that must be ‘combined’ may come originally from different audio sources.”
  4. “Regardless of the outcome of Issues 1, 2, and 3, whether the Board erred in its application of industry praise law to the facts that exist in the record, leading it to analyze the ultimate question of obviousness without weighing evidence of nonobviousness that this Court’s precedents require it to weigh.”