Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today’s report highlights:

  • an article arguing that in patent cases the Federal Circuit recently strayed from the Supreme Court’s “flexible approach to obviousness”;
  • a blog post analyzing the Federal Circuit’s alleged “improper destabilization of settled res judicata principles” in patent cases;
  • another article discussing how the “Federal Circuit has provided uniformity” regarding the proper interpretation of the America Invents Act’s estoppel provision; and
  • a third article identifying primary takeaways from a recent Federal Circuit ruling addressing patent law’s experimental-use doctrine and on-sale bar.

Samantha Handler authored an article for Bloomberg Law indicating that, in Intuitive Surgical Operations, Inc. v. Auris Health, Inc., the Federal Circuit “limited the weight given to general industry skepticism in analyses of whether a patent should be invalidated as obvious.” Handler noted that “Judge Jimmie V. Reyna authored a dissent cautioning the majority from adopting an inflexible rule.” Relatedly, some attorneys have argued this “decision reflects a more rigid approach that conflicts with Supreme Court precedent,” Handler explained. Moreover, the article notes, Polk Wagner, a professor, has said “the Federal Circuit has been struggling to provide the frameworks and principles to the lower courts and PTAB on the obviousness inquiry without running afoul of [precedent].”

Dennis Crouch wrote a blog post for PatentlyO arguing the Federal Circuit “improperly created and then expanded upon a separate-and-distinct form of res judicata that it labels the Kessler Doctrine.” Crouch explained that the doctrine operates “to bar litigation in situations where . . . traditional forms of preclusion do not.” Moreover, he noted, “the effective approach is an odd blend of issue preclusion and claim preclusion where the due process safeguards of each are relaxed or removed.”

Adam Lidgett filed an article with Law360 discussing the Federal Circuit’s decision to deny a petition for rehearing that “hinged on the America Invents Act’s estoppel provision.” Lidgett noted that lower courts split on the issue, as “[s]ome allowed litigants to raise invalidity arguments in litigation that they chose not to raise in an IPR, but others said such defenses are not permitted.” Lidgett explained that, through this denial, “the Federal Circuit has provided uniformity by saying the more restrictive second reading is correct.”

John Hilten published an article with JD Supra discussing how, in Sunoco Partners Marketing & Terminals L.P. v. U.S. Venture, Inc., the Federal Circuit “provides some insight as to what [actions] may not be considered to be primarily for purposes of experimentation.” Hilten also noted that the opinion provides insight as to what actions may be considered an on-sale bar, “[f]or example, purchase supply commitments and termination fees.”