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

  • a blog post examining “whether, when it comes to questions about patent venue, the Federal Circuit is really in the pocket of big tech”;
  • another blog post highlighting how, “[i]n a far cry from usual textualism,” the Supreme Court affirmed a Federal Circuit decision in a veterans case; and
  • an article discussing an en banc petition that argues that “a recent split Federal Circuit panel decision gives the Patent Trial and Appeal Board the improper authority to overturn circuit court decisions.”

Paul R. Gugliuzza, Jonas Anderson, and Jason Rantanen co-authored a blog post for PatentlyO examining the hypothesis that “the Federal Circuit is polluted with ‘anti-patent sentiment’ . . . thwarting patentees (and innovation) by sending infringement cases away from patentees’ chosen courts in Texas to places that are friendlier to [big tech] defendants, such as the Northern District of California.” According to the authors, “a mandamus petition seeking transfer from Texas to the Northern District of California is nearly 40% more likely to be granted than a petition seeking transfer from Texas to any other district.” The authors noted that “the overall grant rate for Federal Circuit mandamus petitions challenging denials of § 1404(a) transfer motions by the Eastern or Western District of Texas is 37.5%.”When looking at the grant rate of individual petitioners like Apple, Google, and Microsoft, however, the authors noted that they “do about average.” Accordingly, the authors emphasized that they “would hesitate to say that any of [this data] establishes that the Federal Circuit is biased against patentees and in thrall to big tech.”

Anita Krishnakumar wrote a blog post for SCOTUSblog highlighting how, in George v. McDonough, the Supreme Court upheld a Federal Circuit decision “concluding that the application of a later invalidated regulation does not fall into the category of ‘clear and unmistakable error’ permitting revisions of a final [veterans benefits] decision.” Krishnakumar discussed how Justice Barrett, writing for the majority, “explain[ed] that longstanding agency practice and precedent establish that the term ‘clear and unmistakable’ error does not encompass subsequent ‘changes in law’ or ‘changes in the interpretation of law.’” Accordingly, as the article notes, Justice Barrett found that “the Federal Circuit ruling invalidating the agency regulation upon which George’s denial decision was based is a mere ‘change in the interpretation of the law,’” and thus was not a “clear and unmistakable error” that warranted collateral review. 

Adam Lidgett published an article for Law360 discussing how, in Atlanta Gas Light Co. v. Bennett Regulator Guards, Inc., Atlanta Gas filed a petition for rehearing or rehearing en banc, arguing that “‘the panel majority’s precedential opinion hands the Patent Trial and Appeal Board broad new authority to wipe out judgments of this court.'” Lidgett explained how “the majority of a three-judge Federal Circuit panel said it was dismissing Atlanta Gas’ fight because it concerned a timeliness matter.” Lidgett emphasized, however, that “Atlanta Gas said in its petition that ‘under the majority’s reasoning, no decision of the board is ever final.'” As the article notes, Atlanta Gas urged that the Federal Circuit’s “‘decisions reviewing [PTAB] decisions are no longer binding, as the board can simply “reconsider” and pull the rug out from under this court’s decision.'”