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 six new cases, three of which involve petitions for writs of mandamus that were ultimately denied by the Federal Circuit. Additionally, we highlight an opinion in a government contract case and a patent case with a new briefing. Here are the details.
Since our last update, six new cases attracted amicus briefs.
In this patent case, Nimitz Technologies petitioned the Federal Circuit for a writ of mandamus to direct “the district court to terminate its judicial inquisition.” The petition attracted six amicus briefs, all of which opposed the requested relief:
- Intel Corporation
- High Tech Inventors Alliance, Computer and Communications Industry Association, and Alliance for Automotive Innovations
- Acushnet Company, Garmin International, Inc., Red Hat, Inc., SAP America, Inc., SAS Institute Inc., and Symmetry LLC
- Electronic Frontier Foundation, the Public Interest Patent Law Institute, and Engine Advocacy
- Power Integrations, Inc., Dish Network LLC, and Assa Abloy Group
- Chamber of Commerce of the United States of America and Civil Justice
In this patent case, Waverly similarly petitioned the Federal Circuit to issue a writ of mandamus “ending the [district court’s] judicial inquisition.” Waverly raised three issues, including whether the district court lacked jurisdiction, whether the district court abused its discretion, and whether the relevant orders “contradicted the Patent Act and Rules of Civil Procedure.”
This petition attracted two amicus briefs opposing the requested relief:
In this third patent case, Creekview similarly petitioned the Federal Circuit to issue a writ of mandamus “ending the [district court’s] judicial inquisition.” In this petition, Creekview raised the same three issues as Waverly, including whether the district court lacked jurisdiction, whether the district court abused its discretion, and whether the relevant orders “contradicted the Patent Act and Rules of Civil Procedure.”
The Federal Circuit’s order denied the petition finding the district court was within its bounds regarding the inquisition, and that the jurisdictional and abuse issues raised were premature.
This petition likewise attracted two amicus briefs opposing the requested relief:
In its opening brief in this patent case, Apple presents a question regarding whether 35 U.S.C. § 314(d) precludes judicial review of the 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 the Administrative Procedures Act “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 its response, the government primarily 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.”
Three amicus briefs were filed, all in favor of Apple:
- Mylan Pharmaceuticals Inc.
- Dell Inc., SAS Institute Inc., Symmetry, LLC, Alliance for Automotive Innovation,
- Tesla Inc., and American Honda Motor Co., Inc.
In this trade case, PrimeSource claims the President did not act within his statutory authority by extending national security tariffs he had previously applied to steel articles to include derivatives of those articles. The United States, in its opening brief, argues for a reversal of the trial court’s decision and argues that the Federal Circuit’s prior judgment in another case on the same alleged statutory violation at issue “controls and compels reversal.”
In its response brief, PrimeSource argues the “President committed a significant procedural violation and acted outside the authority delegated to him by Congress.” Additionally, PrimeSource argues that “[t]his case fits within the staleness” and other exceptions identified by the Federal Circuit in a prior case, and that “legislative history and separation-of-powers concerns mandate that there is an outer boundary on the authority delegated to the President by Congress.”
This case attracted an amicus brief from American Steel Nail Coalition in favor of the United States.
In its opening brief in this patent case, NeoMagic, one of the defendants, requests the Federal Circuit reverse the district court’s relevant order and “direct the district court to enter an award of attorneys’ fees and costs.” NeoMagic contends “that each of Gorge’s four claims for relief are facially frivolous.” Further, NeoMagic contends, “Gorge engaged in bad faith litigation, vexatious litigation, and litigation misconduct.”
Gorge, in its reply brief, states that it “was fully withing its rights” when it commenced the “action against the companies selling counterfeit products.” Gorge explains that it dismissed NeoMagic from the case “[w]hen it became clear that NeoMagic had only sold a nominal amount of counterfeit product and was no longer” selling the product. Additionally, Gorge contends, it “acted with both the spirit and the letter of the law,” and that the district court’s decision not to award attorney’s fees was proper.
This case attracted an amicus brief from Professor Lorianne Updike Toler that supported neither party.
Orders and Opinions
Since our last update, the Federal Circuit issued dispositive orders in three of the patent cases discussed above and an opinion in a government contract case, all of which attracted amicus briefs.
As discussed above, in this patent case, Nimitz Technologies petitioned the Federal Circuit for a writ of mandamus to direct “the district court to terminate its judicial inquisition.” In a per curium order, the Court denied the petition. The order explains that district court’s identified concerns prompting its information demand were all “related to potential legal issues,” which were within its “range of authority.”
As also discussed above, in this patent case, Waverly similarly petitioned the Federal Circuit to issue a writ of mandamus “ending the [district court’s] judicial inquisition.” Likewise, the Federal Circuit issued another per curium order denying the petition. This order found the district court was within its authority and that some allegations raised in the petition were premature.
As also discussed above, in this patent case, Creekview similarly petitioned the Federal Circuit to issue a writ of mandamus “ending the [district court’s] judicial inquisition.” Likewise, the Federal Circuit issued another per curium order denying the petition. This order also found the district court was within its authority and that some allegations raised in the petition were premature.
In this case, the government appealed a decision by the Armed Services Board of Contract Appeals relating to Raytheon’s compliance with Federal Acquisition Regulations regarding whether lobbying and acquisition and divesture costs may be passed on to the government.
The Federal Circuit concluded that the Board erred in finding that Raytheon’s policies complied with the FAR and that the government did not show Raytheon overcharged it. As a result of its analysis, the Federal Circuit reversed the Board’s judgment and remanded the case for a determination of costs Raytheon must repay and, if necessary and appropriate, any potential penalties. For more information, check out our opinion summary.
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, a new amicus brief, SG Gaming’s response brief, and New Vision’s reply brief were filed.
New Vision received support from an amicus brief filed by Centripetal Networks Inc, which focuses on due process.
In its response brief, SG Gaming argues that New Vision’s “reading of Supreme Court precedent is flawed,” and, moreover, that the Federal Circuit “should conclude New Vision is judicially estopped from its current argument.” Further, SG Gaming contends, if the Federal Circuit reaches “the merits of New Vision’s arguments about the forum selection clause,” these argument fail.
New Vision, in its reply brief, reiterates its original arguments regarding alleged biases of the PTAB.