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 two new cases, one with an upcoming oral argument. Additionally, we highlight an opinion in a patent case, a patent case with a new brief, and argument recaps for three cases that were heard in October. Here are the details.

New Cases

Since our last update, two new cases attracted amicus briefs.

Celanese International Corp. v. International Trade Commission

In its opening brief, Celanese contends that an administrative law judge legally erred in concluding that the sale of its products invalidated its patent claims. Celanese argues that the America Invents Act’s on-sale provision does not include “a product made by using the claimed invention” but rather “requires the ‘claimed invention’ itself” . . . to be ‘on sale.’” This case attracted an amicus brief from the National Association of Manufacturers in support of Celanese.

Lockheed Martin Aeronautics Co. v. Secretary of the Air Force

Lockheed appeals a ruling of the Armed Services Board of Contract Appeals. In its opening brief, Lockheed explains that, “[i]n government contacting, a unilateral decision [by the goverment] regarding how much to pay the contractor (for the entire contract) is an extraordinary action of last resort,” and unilaterally establishing the total contract price is called “definitizing.” Lockheed contends the “Government’s resort to unilateral price determinations,” that is, definitizing, “constituted Government claims under the [Contract Disputes Act].”

In its response, the Secretary of the Air Force argues “the unilateral contract definitizations are not Government claims” and, because of this, the court should “conclude that the board correctly determined that it lacked jurisdiction to entertain Lockheed Martin’s appeals.”

In its reply brief, Lockheed asserts that Federal Circuit “cases defining Government claims, and the language of the regulations” support the Board’s jurisdiction.

This case attracted an amicus brief from the National Defense Industrial Association in support of Lockheed. This case is set to be heard next month.


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

Uniloc USA, Inc. v. Motorola Mobility LLC

In this case, Uniloc appeals a district court’s decision to dismiss its patent infringement action. The Federal Circuit’s opinion affirmed the lower court’s dismissal for lack of standing. The court held that “Uniloc is collaterally estopped from arguing that it did not grant a license, including a right to sublicense,” and because of the existence of that license Uniloc was deprived of standing. We will post an opinion summary later this week.

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, Concert filed its reply brief. In it, Concert asserts that the facts of the case are undisputed and the issue is “over the legal significance” of the facts. Concert argues that Incyte does not address the “key issue” regarding “whether a skilled artisan would have expected” the effect on the pharmacokinetic properties in question. Further, Concert reasserts that “the Board’s legal analysis was flawed” and the “legal errors require reversal.”

Argument Recap

Since our last report, the Federal Circuit has heard oral arguments in three cases that attracted amicus briefs.

Behrens v. United States

This case concerns a claim the federal government was liable for taking land for public use through the National Trails System Act. Specifically, in this case, the Federal Circuit will review the determination by the Court of Federal Claims that the plaintiffs were not entitled to compensation because the scope of the easement in question was broad enough to encompass railbanking and the construction of a hiking and biking trail. See our argument recap for highlights of the parties’ arguments.

Ideker Farms, Inc. v. United States

This case also concerns the federal government’s liability for taking private property. In this case, however, the Federal Circuit is reviewing the conclusion of the Court of Federal Claims that the government’s action was the cause-in-fact of flooding damage and that, as a result, a taking-by-flooding occurred. See our argument recap for details about the parties’ contentions.

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 Regulation regarding “lobby costs” and “acquisition and divesture costs.” See our argument recap for our overview of the parties’ arguments.