This week is Court Week at the Federal Circuit. In total, the court will convene twelve panels to consider 47 cases. Of these 47 cases, the court will hear oral arguments in 38. The Federal Circuit is providing access to live audio of these arguments via the Federal Circuit’s YouTube channel. Of the argued cases, two cases attracted amicus briefs. One concerns judicial review of factors (the so-called Fintiv factors) adopted by the Director of the Patent and Trademark Office to govern decisions whether to institute inter partes review of patents. The other addresses whether the President exceeded his statutory authority in an international trade case. Here’s what you need to know about these cases.
Apple Inc. v. Vidal
As explained in our argument preview, in this case the Federal Circuit will address whether 35 U.S.C. § 314(d) precludes judicial review of factors (the so-called Fintiv factors) adopted by the Director of the Patent and Trademark Office to govern decisions whether to institute inter partes review of patents.
Apple argues that “[t]he APA embodies a ‘strong presumption that Congress intends judicial review of administrative action.’” Moreover, it argues, “Section 314(d) does not indicate any congressional intent to preclude review” because “the plain text indicates, and the statutory context and purposes confirm, § 314(d) bars review only of ‘determination[s] . . . whether to institute [IPR].’”
In response, the government argues Apple “lack[s] standing to challenge” the relevant factors because its “alleged harm is not concrete and particularized enough to constitute an injury in fact.” Furthermore, it asserts that “plaintiffs’ claims are not justiciable under the APA” because the Leahy-Smith America Invents Act “grants the Director unreviewable discretion to deny institution of [inter partes review], and the Supreme Court has held that the statute’s preclusion of review encompasses the application and interpretation of statutes closely related to institution.”
Three amicus briefs were filed, all in favor of Apple, by Mylan Pharmaceuticals Inc., Dell Inc., SAS Institute Inc., Symmetry, LLC, Alliance for Automotive Innovation, Tesla Inc., and American Honda Motor Co., Inc.
Catherine Carroll will argue for Apple.
Weili Shaw will argue for the government.
This argument is scheduled to take place Thursday, January 12 in Courtroom 402 at 10:00 AM Eastern.
PrimeSource Building Products, Inc. v. United States
As explained in our argument preview, in this case, the Federal Circuit will address whether the President acted within his statutory authority by extending national security tariffs he had previously applied to steel articles to include derivatives of those articles.
The government argues the Federal Circuit’s prior judgment in another case “controls and compels reversal” because in that case the court “reversed a judgment premised on the same alleged statutory violation at issue here.” Further, it argues, “[t]he President’s exercise of judgment and fact-finding are, of course, not subject to judicial review.” Moreover, the government maintains, “the nexus between the President’s measure on derivative steel products and the original threat of impairment to national security is clear on the face of Proclamation 9980.”
In response, PrimeSource Building Products asserts that “[t]he President committed a significant procedural violation and acted outside the authority delegated to him by Congress.” In particular, PrimeSource faults him for “impos[ing] tariffs on steel derivative products outside of the time constraints for him to act after receiving the Secretary’s report finding that imports threatened the national security of the United States.” Moreover, it argues, “[b]oth legislative history and separation-of-powers concerns mandate that there is an outer boundary on the authority delegated to the President by Congress to act outside of the [relevant] time constraints.”
Kenneth Kessler will argue for the government.
Andrew Caridas will argue for PrimeSource Building Products.
This argument is scheduled to take place Tuesday, January 10 in Courtroom 201 at 10:00 AM Eastern.