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, according to recent statistics, “[p]atent owners face a tougher road on appeal than accused defendants and patent challengers”;
  • another article addressing how “Coca-Cola Co. saw its trademark tribunal win tossed by a Federal Circuit panel”; and
  • a blog post discussing “[l]essons from [the] rejection of Apple’s cert petition against Qualcomm” in Apple Inc. v. Qualcomm Inc.

Britain Eakin published an article with Law360 highlighting how the Federal Circuit affirms “underlying decisions patent owners want overturned 78% of the time, according to statistics from Morrison & Foerster.” In contrast, Eakin noted, “the Federal Circuit affirms decisions that defendants and patent challengers are appealing just 59% of the time, meaning they get the appeals court to reverse or vacate the decision they’re appealing 41% of the time, compared to 22% of the time for patent owners.” As the article notes, Brian Matsui, a partner at Morrison & Foerster, explained how “‘the deferential standard of review for [inter partes review] panels before the board plays a huge role in the higher affirmance rate.'”

Samantha Handler authored an article for Bloomberg Law addressing how, in Meenaxi Enterprise, Inc. v. Coca-Cola Co., a Federal Circuit panel “ruled that the [Trademark Trial Appeal Board] was wrong in canceling a wholesale distributor’s US marks because of Coke’s sales abroad.” According to the article, “Coke failed to show that it had lost sales or had any reputational injury in the US from Meenaxi Enterprise Inc.’s US sales of ‘Thums Up’ and ‘Limca’ beverage.” Handler explained how “Coke uses [those] marks for its cola and lemon-lime flavored drinks popular in India.”

Florian Mueller wrote a blog post for FOSS Patents discussing takeaways from the Supreme Court’s denial of Apple’s writ of certiorari in Apple Inc. v. Qualcomm Inc. Mueller highlighted how the Federal Circuit previously “held that Apple lacked standing to appeal decisions by the Patent Trial and Appeal Board (PTAB) . . . due to a portfolio license it had taken from Qualcomm in 2019.” According to Mueller, “[w]hat Apple could have done—but presumably elected not to do—would have been to declare and potentially proffer evidence with respect to the risks it expects to face from those patents in the future.” Mueller explained how “Apple essentially contented itself with saying that Qualcomm had already picked those patents from a portfolio of tens of thousands of patents, and would likely pick them again.” In addition, Mueller noted how “Apple’s primary problem may have been that the Federal Circuit, the DOJ, and ultimately the Supreme Court just couldn’t see a pressing and legitimate reason for which Apple kept challenging those patents after the 2019 settlement.”