Court Week / En Banc Activity / Panel Activity

This week is Court Week at the Federal Circuit, with hearings starting today. Due to the recent spike in COVID cases, all February oral arguments will 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 nine panels to consider about 41 cases. Of these 41 cases, the court will hear oral arguments in 31. Of these argued cases, two attracted amicus briefs: one veterans case being heard en banc and one patent case. Here’s what you need to know about these two cases.

Zaxcom, Inc. v. Lectrosonics, Inc.

As explained in our argument preview, in this patent case Zaxcom appeals an adverse decision by the Patent Trial and Appeal Board in an inter partes review proceeding brought by Lectrosonics.

On appeal, Zaxcom argues the PTAB incorrectly construed certain claims, incorrectly found certain claim elements in the prior art, and erred in its analysis of secondary considerations of non-obviousness.

Lectrosonics cross-appeals, arguing the Board incorrectly found substitute claims to be patentable.

The acting Director of the U.S. Patent and Trademark Office intervened. In his brief, he argues that “[s]ubstantial evidence supports the Board’s determination.”

U.S. Inventor, Inc. filed an amicus brief in support of Zaxcom, and retired Federal Circuit Judge Paul R. Michel filed an amicus brief in support of neither party.

Robert Greenspoon will argue for the Zaxcom.

Cory Bell will argue for the Lectrosonics.

This argument is scheduled to take place on Wednesday, February 9, in (virtual) Courtroom 201 at 10:00 A.M. Eastern.

Taylor v. McDonough

As explained in our argument preview, in this veterans case, being heard en banc, the court will consider whether equitable estoppel may be used against the government with respect to establishing the effective date of a veteran’s award of benefits pursuant to 38 U.S.C. § 5110.

Taylor argues that, “[h]aving engaged in affirmative misconduct that materially prejudiced Mr. Taylor, the executive should be estopped from arguing that 38 U.S.C. § 5110(a)(1) prevents Mr. Taylor from seeking an earlier effective date.” Moreover, Taylor contends, the “executive’s egregious misconduct violated Mr. Taylor’s fundamental right of access to courts and the VA processes that are a prerequisite to that right.”

McDonough responds that “Congress must authorize VA to pay appropriated funds,” and under the circumstances of this case, it has not. The government argues that “the courts must also stay their hand lest they create a separation of powers conflict.”

Five amicus briefs were filed in support of Taylor by the American Legion; Military-Veterans Advocacy Inc.; National Law School Veterans Clinic Consortium; National Veterans Legal Services Program; and the American Civil Liberties Union.

Charles McCloud will argue for Taylor.

William Grimaldi will argue for McDonough.

This argument is scheduled to take place on Thursday, February 10, in (virtual) Courtroom 201 at 10:00 A.M. Eastern.