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

  • an article examining how the Federal Circuit affirms “[n]early 73%” of Patent Trial and Appeal Board decisions; 
  • another article addressing how the Federal Circuit recently clarified the analysis of intrinsic evidence for allegedly indefinite claim terms; and
  • a third article discussing how the Federal Circuit revived hundreds of lawsuits by plaintiffs who “say the Army Corps of Engineers temporarily took their property by releasing water from two dams.”

Andrew Karpan published an article for Law360 examining how “the Federal Circuit has considered more than 1,000 appeals from the Patent Trial and Appeal Board and affirmed the board 72.6% of the time, according to data compiled by” a group of patent attorneys at Finnegan. Daniel Klodowski, an associate at Finnegan, emphasized that when the firm began “‘tracking these numbers several years ago, it was closer to an 80% affirmance rate, and now it’s trending closer to 70%.’” Moreover, regarding the “somewhat-dreaded ‘Rule 36’ affirmation,” Karpan noted how “[j]ust 56.8% of appeals from PTAB findings were able to secure written opinions from judges on the Federal Circuit.”

Steve Brachmann wrote an article for IPWatchdog addressing how, in ClearOne, Inc. v. Shure Acquisition Holdings, Inc., the Federal Circuit found that intrinsic evidence alone supported the Patent Trial and Appeal Board’s ruling “that a substituted claim, offered by the patent owner, Shure, was not invalid due to an indefinite claim term.” Brachmann noted how the Court “reiterated that a claim’s mere susceptibility to multiple meanings doesn’t render it indefinite as ‘[s]uch a test would render nearly every claim term indefinite so long as a party could manufacture a plausible construction.’” According to Brachmann, “[w]hile the intrinsic evidence alone supported the PTAB’s indefiniteness finding, the Federal Circuit also took the extrinsic evidence of dictionary evidence and expert testimony” to find that the PTAB’s ruling was supported by substantial evidence. 

Barbara Grzincic filed an article with Reuters discussing how, in Milton v. United States, the Federal Circuit “revived hundreds of lawsuits by Houston-area property owners who say the U.S. Army Corps of Engineers flooded their homes and businesses with as much as eight feet of water after Hurricane Harvey.” As the article notes, the Federal Circuit held that the plaintiffs who owned land “downstream from the Addicks-Barker dams can pursue their claims that the government has a constitutional obligation to compensate them for temporarily ‘taking’ their property by releasing massive amounts of water from the reservoirs for more than a week.” According to Grzincic, “[t]he panel sent the case back to the Court of Federal Claims to consider the merits of the case and the Corp’s defenses.”