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 how “opinions in regular [Federal Circuit] appeals are more than twice as likely to be precedential than orders” on petitions for mandamus related to venue;
  • an article discussing how “the Federal Circuit over the past decade has adopted more stringent standards for meeting the [Patent Act’s] dictates that patents provide a clear written description, and enable others to understand the invention”; and
  • another article discussing how, after the Supreme Court’s recent denial of certiorari in American Axle & Manufacturing, Inc. v. Neapco Holdings LLC, “[p]atent eligibility in America is a train wreck.”

Paul R. Gugliuzza, Jonas Anderson, and Jason Rantanen co-authored a blog post for PatentlyO examining how “the proportion of [Federal Circuit] appeals resolved in precedential opinions is substantially higher than for venue mandamus petitions.” According to the authors, the data they collected reflects that “the outcomes reported in those precedential opinions—like precedential mandamus orders—are skewed toward cases in which the Federal Circuit disagrees with the decision below.” The authors noted how “only 53% of precedential Federal Circuit opinions affirm the lower tribunal,” whereas “nonprecedential opinions . . . fully affirm 81% of the time.”

Samantha Handler published an article for Bloomberg Law discussing “[p]harmaceutical patent owners’ growing frustration with the Federal Circuit’s tightening of Patent Act provisions that require inventors to fully describe what they’ve created” and how that frustration “has led to multiple Supreme Court petitions.” Handler noted how three different Supreme Court petitions—Amgen Inc. v. Sanofi, Aventisub LLC, Biogen International GmbH v. Mylan Pharmaceuticals Inc., and Juno Therapeutics, Inc. v. Kite Pharma, Inc.—”now ask the high court to examine the tests that have evolved from the statutory language that set benchmarks for how patent owners disclose the full scope of their inventions—tests attorneys say have created a particularly high burden on the life sciences industry.”

Gene Quinn wrote an article for IPWatchdog discussing the Supreme Court’s recent denial of certiorari in American Axle & Manufacturing, Inc. v. Neapco Holdings LLC. According to Quinn, “[e]veryone agrees that the Federal Circuit decision in American Axle is wrong and that the invention in question has always been the type of invention that has historically—for hundreds of years—been patent eligible.” Quinn noted that, after the denial in American Axle, “it is foolish to think [the Supreme Court] will take any case, particularly after the Solicitor General advised taking this case now.” In response, Quinn suggested inventors “[f]ile patent applications using the Patent Cooperation Treaty, enter the U.S. national stage as late as you possibly can, and drag prosecution out as slowly as you can.”