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 “[w]ho appeals (and wins) patent cases”;
  • an article discussing how the Federal Circuit recently ruled that “[e]rrors don’t have to be immediately found in patents” to later render the patent invalid as obvious; and
  • another article highlighting how a petitioner in a patent eligibility case “filed a reply brief . . . distancing its petition from that of American Axle & Manufacturing, Inc.’s, which was denied certiorari on June 30.”

Jason Rantanen wrote a blog post for PatentlyO examining “who actually files appeals in patent infringement cases and how representative are they of the underlying civil actions filed in the courts.” According to data collected by Rantanen’s research team, “[a]ppeals are overwhelmingly filed by patent asserters: 82% of first appeals in the set were filed by patent asserters compared to 18% by accused infringers.” In addition, Rantanen highlighted how “cases brought by product companies are appealed at a higher rater than cases brought by companies that acquired patents.” With regard to who wins patent cases, Rantanen explained that his team “define[s] a ‘win’ as obtaining an affirmance if a party is the appellee and an affirmance-in-part, reversal or vacate if a party is the appellant.” Under this definition, Rantanen noted that his team “found that overall, patent asserters usually lose on appeal, with product companies being much more successful than [patent assertion entities].”

Samantha Handler authored an article for Bloomberg Law discussing how, in LG Electronics Inc. v. ImmerVision, Inc., a “split Federal Circuit panel’s refusal to shift the standard for when errors in patents are considered apparent keeps in place a muddled, fact-dependent test that can make it difficult for attorneys to know when to mount challenges.” The article explains how the panel ruled that “an inaccuracy doesn’t need to be immediately clear to an expert in the field to render the patent unusable to show a later patent to be invalid as obvious.”

Eileen McDermott published an article for IPWatchdog explaining how, in Interactive Wearables, LLC v. Polar Electro Oy, Interactive Wearables filed a reply brief that “characterizes U.S. patent eligibility doctrine as being ‘perilously fractured’ and narrows its arguments to focus on the third question presented in its petition, since the first two were addressed, and have now been rejected by the Court” in American Axle & Manufacturing, Inc. v. Neapco Holdings LLC. As McDermott notes, “Interactive Wearables said the claims at issue in its case ‘starkly highlight how far the Federal Circuit’s patent eligibility analysis has ventured into the realm of enablement.'”