Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today’s report highlights:
- an article highlighting how “[f]ewer than 20% of attorneys arguing in front of the US Court of Appeals for the Federal Circuit in 2021 were women, according to Bloomberg Law data”;
- a blog post explaining how the Federal Circuit’s high grant rate for mandamus petitions “is driven almost entirely by mandamus petitions in patent infringement cases out of the Eastern and Western Districts of Texas that raise questions about transfer of venue for convenience reasons under 28 U.S.C. § 1404(a)”; and
- another article discussing how a virtual reality company “has urged the U.S. Supreme Court to review a Federal Circuit decision upholding the invalidation of its four gaming patents under Alice, amplifying calls for the high court to clarify the two-part patent eligibility test.”
Perry Cooper and Samantha Handler co-authored an article for Bloomberg Law highlighting the lack of diversity amongst attorneys practicing before the Federal Circuit. The authors explained that “[p]atent law has been a historically White- and male-heavy practice area, in part because of the patent bar’s science requirements and the related lack of diversity in science fields.” Addressing the lack of representation amongst Black women, the authors emphasized that, according to Jeanne M. Gills, a Foley & Lardner LLP partner, “[p]art of the issue is a lack of mentors available to show Black women that they don’t necessarily need the technical qualifications that are required for patent prosecution to practice patent litigation.”
Jonas Anderson, Paul R. Gugliuzza, and Jason Rantanen co-wrote a blog post for PatentlyO explaining how, “from 2008 through 2021, the Federal Circuit granted 37.3% of mandamus petitions out of the Eastern and Western Districts of Texas on § 1404(a) issues” compared to a 9.9% grant rate on other issues. The authors noted, however, that during this same period, “the Federal Circuit issued only 19 precedential decisions on § 1404(a) transfer out of 128 total decisions.” According to the authors, “the lack of binding precedent on venue-related mandamus illustrates the problematic nature of the Federal Circuit’s choice-of-law rules more generally.” The authors explained how many legal issues that arise in patent cases, including venue and mandamus, are not governed by Federal Circuit precedent, but are “governed by the precedent of the regional circuit from which the case arises.” Accordingly, the authors urged, “the Federal Circuit should simply apply its own precedent to all federal issues that arise in patent cases.”
Jasmin Jackson published an article for Law360 discussing how, in Worlds Inc. v. Activision Blizzard Inc., Worlds filed a petition for writ of certiorari arguing that the Federal Circuit “incorrectly affirmed U.S. District Judge Denise J. Casper’s May 2021 ruling invalidating a group of gaming patents challenged by Call of Duty maker Activision Blizzard.” Jackson explained how “Judge Casper had held the inventions lacked an inventive element based on the Supreme Court’s 2014 ruling in Alice Corp. v. CLS Bank, which established a two-part test to determine whether a patent is too abstract or conventional.” Jackson noted that “Worlds has requested the high court either take up its case or hold its petition pending the outcome of American Axle.”