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

  • an article discussing how “[a]n unusual Federal Circuit decision has given generic drugmakers a new way to successfully challenge pharmaceutical patents with specific types of claims”;
  • another article explaining how “the broader context of [Thaler v. Vidal] can provide strategic guidance for future AI litigation matters”; and
  • a third article highlighting how the Federal Circuit recently reversed a “$2.75 [billion] damages award because [the] judge’s wife owned stock.”

Samantha Handler authored an article for Bloomberg Law discussing how the Federal Circuit’s recent opinion in Novartis Pharmaceuticals Corp. v. Accord Healthcare, Inc. “creates a framework for what is necessary for a patent to satisfy the written description requirement for claims that show the absence of a feature in a patent, known as a negative claim limitation.” Handler explained how, according to the opinion, “[s]ilence—meaning no mention of a feature in the description—can’t generally support negative limitations, except when patent owners show that skilled experts in the field would ‘always’ understand that a feature should be excluded.” As the article notes, Michelle Armond, an attorney, emphasized how “[t]he ruling outlines a new defense generic drug makers accused of infringing a name-brand drug can raise to attack the patent as invalid.” Moreover, Handler noted, “[t]he court’s opinion changed after a rare sequence of events, which could make the case ripe for the full Federal Circuit or the US Supreme Court.”

Mark Davis published an article for Law360 explaining that “[w]hat the Federal Circuit judges chose to ask about artificial intelligence in [Thaler v. Vidal] was revealing for the direction that judicial responses to AI may take in future cases.” Davis emphasized how “[t]his appeal was the first time that the Federal Circuit has substantively considered artificial intelligence.” Davis then noted how the Federal Circuit judges “asked questions that highlight three areas that AI patent litigators must navigate,” including questions concerning statutory interpretation, the role of humans in artificial intelligence, and other areas of IP law. According to Davis, “this case shows that our litigation system is itself capable of handling AI disputes.”

Jonathan Stempel wrote an article for Reuters highlighting how, in Centripetal Networks, Inc. v. Cisco Systems, Inc., the Federal Circuit reversed a $2.75 billion damages award to Centripetal, finding that “the trial judge should have disqualified himself upon learning that his wife owned Cisco stock.” Stempel discussed how “U.S. District Judge Henry Morgan . . . learned in August 2020 that his wife owned 100 Cisco shares worth $4,688, and told the parties that the shares ‘did not and could not have influenced’ his handling of the case.” However, Stempel explained that the Federal Circuit “said letting Morgan stay on the case risked undermining public confidence in the judicial process.” As the article notes, “‘[i]t is seriously inimical to the credibility of the judiciary for a judge to preside over a case in which he has a known financial interest in one of the parties and for courts to allow those rulings to stand,’ Circuit Judge Timothy Dyk wrote for the appeals court.”