Panel Activity

Here is this month’s update on activity in cases pending before panels of the Federal Circuit where the cases involve at least one amicus brief. We keep track of these cases in the “Other Cases” section of our blog. Today, with respect to these cases we highlight an opinion in a takings case, two patent cases with new briefing, one patent case in which one of three appellants voluntarily dismissed its appeal, and three cases (two takings cases and one government contracts case) with upcoming oral arguments. Here are the details.


Since our last update, the Federal Circuit issued an opinion in a takings case that attracted an amicus brief.

Memmer v. United States

In this case, Memmer challenged the analysis of causation by the Court of Federal Claims and its decision that “the duration of the taking lasted as long as the railroad’s abandonment authority existed.” Additionally, the United States cross-appealed to argue an alleged error by the Court of Federal Claims in holding “that Indiana Southwestern would have abandoned if the [notice of interim trail use] had not issued.”

The Federal Circuit was not persuaded by Memmer’s argument that the lower court “erred in its causation analysis.” The Federal Circuit, however, agreed with the government “that the taking ended upon expiration” of the notice of interim trail use and, as a result, vacated the court’s judgment as to compensation and interest. For more information, check out our opinion summary.

New Briefing

Concert Pharmaceuticals, Inc. v. Incyte Corp.

In this patent case, Concert appeals a decision by the Patent Trial and Appeal Board that “Petitioner has shown by a preponderance of the evidence that the challenged claims are unpatentable.” As we previously reported, Concert received support in the form of an amicus brief filed by Bald Girls Do Lunch.

Since our last report about this case, Incyte filed its response brief. In it, Incyte asserts that the Board correctly applied precedent and also correctly “weighed the parties’ arguments and evidence [when it] determined that the challenged claims would have been obvious to a skilled artisan.”

New Vision Gaming, Inc. v. SG Gaming, Inc.

In this patent case, New Vision contends that the institution process used by the Patent Trial and Appeal Board “does not meet the ‘jealously protected’ due process standard” based on the “inherent tie between the PTAB’s institution decisions and the substantial revenue generated by those decisions.” New Vision argues that, as a result, “the Director’s decision should be reversed, and the Board’s decision should be vacated.” As we previously reported, New Vision received support in the form of an amicus brief filed by US Inventor, Inc.

Since our last report about this case, New Vision received support in the form of another amicus brief filed by Ron D. Katznelson. This brief focuses on “the financial incentives and the performance measures” of the Administrative Patent Judges serving on the PTAB.

Voluntary Dismissal            

Since our last update, one of the appellants in a case that attracted an amicus brief voluntarily dismissed its appeal.

Panduit Corp. v. International Trade Commission

One of the appellants in this case, Panduit, moved for the Federal Circuit to dismiss its appeal. In its motion, Panduit made it clear that this voluntary dismissal was with respect only to Panduit. At this time, the two other appellants have not voluntarily dismissed their appeal.

Upcoming Oral Arguments

Next month three cases that attracted amicus briefs will be argued.

Behrens v. United States

In this takings case, Behrens presents two issues:

1. “Were the railroad purpose easements obtained by the railroad as ‘voluntary grants’ broad enough to permit railbanking and the construction of a hiking and biking trail under the Trails Act?”

2. “Did the CFC abuse its discretion by striking Plaintiffs’ third and fourth motions for summary judgment pertaining to the alternative path to liability based on state law abandonment . . . after the issue had already been presented to the CFC on two prior occasions and the CFC never ruled?”

This case has attracted two amicus briefs in support of Behrens.

Ideker Farms, Inc. v. United States

In this takings case, the United States argues there are four reasons the judgment of the Court of Federal Claims should be reversed:

1. “The CFC applied an incorrect legal standard for determining whether the entirety of the government’s action is the cause-in-fact of the flooding damage about which Plaintiffs complain.”

2. “The CFC erred in holding that the United States could not defend against the alleged takings by showing that the relative benefits to Plaintiffs’ property from the Missouri River Mainstem System of Reservoirs (System), associated federal levees, and the Bank Stabilization and Navigation Project (Navigation Project, or the BSNP) outweigh any detriments.”

3. “The CFC misapplied the factors from Arkansas Game and Fish Commission v. United States, 568 U.S. 23 (2012), to conclude that the United States was responsible for a taking-by-flooding of Plaintiffs’ property.”

4. “The CFC erroneously selected a date of taking corresponding only to an administrative cut-off to assist with discovery and unrelated to any physical events regarding Plaintiffs’ claims.”

This case attracted four amicus briefs.

Secretary of Defense v. Raytheon Company

In this government contract case, the Secretary of Defense appeals the lower court’s ruling on Raytheon’s compliance with Federal Acquisition Regulations regarding “lobbying costs” and “acquisition and divesture costs.” This case attracted an amicus brief in support of Raytheon.