Here is another 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 dispositions for patent cases and another that addresses jurisdiction. We also highlight four new cases (a contract case, a trade case, a takings case, and a tax case), all of which are set to be argued next month, along with a patent case. Additionally, we highlight an argument recap in patent case. Here are the details.
Opinions
This past month the Federal Circuit issued three opinions disposing of case that attracted amicus briefs.
Jazz Pharmaceuticals, Inc. v. Avadel CNS Pharmaceuticals LLC
In this patent case, the Federal Circuit considered whether a determination by a district court that Jazz must request the Food and Drug Administration remove (or “delist”) one of its patents from the FDA’s so-called Orange Book because that patent was improperly listed. The panel affirmed the district court’s judgment because the “delisting statute . . . provides that those accused of infringing a listed patent may request an order requiring the patent holder to correct or delete listings for patents that do not claim the drug or a method of using the drug.” See our opinion summary for more information.
C.R. Bard, Inc. v. Medical Components, Inc.
In this patent case, the Federal Circuit considered an appeal regarding a determination by a district court that Bard’s patent claims are directed to patent-ineligible printed matter under 35 U.S.C. § 101 and, moreover, lack an inventive concept. The Federal Circuit also considered a cross-appeal on whether MedComp’s patent claims are ineligible. The panel reversed the district court’s judgment for the appeal, finding that based on precedent Bard’s patents were eligible. The panel vacated and remanded the district court’s judgment in the cross-appeal because the district court applied the “same erroneous” analysis to MedComp’s patents. See our opinion summary for more information.
Apple Inc. v. Vidal
In this case, the Federal Circuit considered 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. The panel affirmed the district court’s decision to dismiss the “challenges to the Director’s instructions as substantively contrary to statute and as arbitrary and capricious.” The panel, however, reversed and remanded the district court’s dismissal of a separate “challenge to the Director’s instructions as having improperly been issued without notice-and-comment rulemaking.” For more information, check out our opinion summary.
New Cases
City of Wilmington, Delaware v. United States
In this contract case, Wilmington appeals a ruling of the Claims Court. In its opening brief, Wilmington presents six issues: whether the court erred in standard of reviewed applied; whether the court erred in the weight applied to evidence; whether the court correctly construed certain terms in the Clean Water Act when assessing the burden of persuasion; whether the Act obligated the government to exhaust various administrative remedies; and whether Congress’ command concerning the Act can be “interpreted as excluding” the traditional immunity of the Federal Government.
In its response brief, the Government asserts that the “Clean Water Act only waives the Federal Government’s sovereign immunity with respect to ‘reasonable service charges.’” Further, the Government argues that Wilmington failed in to provide any relevant evidence, and that the court was correct in its conclusion.
In its reply brief, Wilmington reasserts its original arguments. Additionally, Wilmington states that the Government failed to “justify the court’s ruling” but instead confirmed “that the court’s suspicions were not grounded in evidence.”
This case attracted an amicus brief in support of Wilmington from the National Association of Clean Water Agencies.
Dixon v. United States
Dixon appeals a ruling of the Court of Federal Claims. In its opening brief, Dixon argues the court erred in dismissing Dixon’s claim “for a lack of subject matter jurisdiction” or “for failure to state a claim for which relief can [be] granted.” Dixon contends Supreme Court precedent “established the informal doctrine” under which a tax refund claim “that is considered too general or does not comply with formal requirements will be treated as a valid claim by the [IRS] if the taxpayer remedies” the issues “by filing an amended refund after the statute of limitations expired.”
In its response brief, the government contends that court correctly dismissed the claims because Mr. Dixon’s “initial amended returns” were not correctly classified as “informal refund claims” in light of the fact they were illegally signed by the tax preparer.
In his reply brief, Dixon expands upon informal claim doctrine. Dixon asserts the government “clings to the lower court’s misconstructions of the doctrine” and that this “is a mistake of law.”
This case attracted an amicus brief in support of Dixon from the Center for Taxpayer Rights.
Jenkins v. United States
In this takings case, Jenkins appeals a the district court’s dismissal of his due-process claim and summary judgment for the government on his taking claims. In his opening brief, Jenkins argues the taking of his “two vehicles as part of a criminal investigation” and then failing to return them constitutes as a government taking. Further, Jenkins contends, “the Little Tucker Act provides a waiver of sovereign immunity for due-process claims.”
The government in its response brief contends that, under the Little Tucker Act, there “is no waiver of sovereign immunity” and that the Act does not create “separate, substantive right for recovery for alleged due process violations.” Additionally, the government asserts, the Federal Circuit “has identified certain exercise of police power that cannot constitute a taking as a matter of law.”
Jenkins in his reply brief reasserts that the United States owes Jenkins “just compensation for physically appropriating” his property.
This case has attracted amicus briefs from the Human Rights Defense Center and from Professors Julia D. Mahoney and Ilya Somin in support of Jenkins.
Solar Energy Industries Association v. United States
In this case, the government appeals the Court of International Trade’s ruling that “set aside the President’s modification in Proclamation 10101.” In its opening brief, the government presents two questions: whether “modification” in the Trade Acts limits the President “to ‘trade-liberalizing’ modifications,” and whether the court erred “in treating the President’s actions to restore application of the safeguard measure to bifacial panels” and “slow the rate at which the measure phased down in its fourth year as trade-restricting ‘increases’ to the safeguard measure.”
Solar, in its response brief, argues the Court of International Trade’s ruling “should be affirmed either on the ground relied upon by” that court “or on other independent grounds.”
In its response brief, Invenergy Renewables and EDF Renewables contends the court’s decision should be affirmed because “the Trade Act does not authorize the President to increase the stringency of an existing safeguard measure.” Alternatively, it argues, “the President failed to determine in Proclamation 10101 that the economic and social benefits of his modification of the safeguard measure outweighed the costs.”
In its reply brief the government argues that the responses of the appellees’ depend on strained arguments of the use of the language “has made” instead of “has begun to make,” which was a distinction “the trial court rejected.” Additionally, the government asserts, “none of the procedural arguments that appellees raise as alternate grounds for affirmance has merit.”
This case attracted an amicus brief in support of affirmance from the Chamber of Commerce of the United States of America and the American Clean Power Association.
Argument Recap
Since our last report, the Federal Circuit has heard oral argument in one case that attracted amicus brief.
FS.COM Inc. v. International Trading Commission
In this case, FS.COM and The Siemon Company appeal a determination by the International Trade Commission that their products infringed a certain patent. Here is our argument recap.
Upcoming Oral Argument
Next month, five case that attracted amicus briefs will be argued. We plan to post our argument previews next week.
Gorge Design Group LLC v. Xuansheng
In this case, NeoMagic, one of the appellants presents the following issues:
1. “Whether the district court clearly erred and/or abused discretion in determining that each of Gorge’s causes of action were not baseless or frivolous.”
2. “Whether the district court clearly erred and/or abused discretion in determining that Gorge and its attorneys did not engage in bad faith litigation, vexatious litigation, and/or litigation misconduct.”
3. “Whether the district court clearly erred and/or abused discretion in refusing to sanction Gorge and its attorneys.”
City of Wilmington, Delaware v. United States
As stated above, in this case Wilmington presents the six following issues:
1. “Whether the court erred by applying the Contract Disputes Act’s appellate standard of de novo review.”
2. “Whether the court erred by (a) disregarding as irrelevant or giving little weight to Wilmington’s circumstantial and contemporaneous evidence, and (b) giving dispositive weight to the United States’ speculation and conjecture.”
3. “Whether the court correctly construed ‘proportionate’ and ‘nondiscriminatory’ in 33 U.S.C. § 1323 when assessing the burdens of persuasion and production regarding affirmative defenses of, and presumptions of correctness of government records and reasonableness of ordinances’ utility rates and procedures against, the United States.”
4. “Whether 33 U.S.C. § 1323 obligated the United States to exhaust administrative remedies available via Wilmington’s appeal process before contesting stormwater charges at trial by arguing entitlement to those remedies.”
5. “If 33 U.S.C. § 1323 obligated the United States to exhaust Wilmington’s administrative remedies:
a. Whether the court abused its discretion by excusing the United States’ failure to exhaust those administrative remedies that (i) involve administrative expertise or discretion and (ii) would not necessarily have been futile if an appeal had been filed between January 4 and March 18, 2011; and
b. Whether the court should have entered judgment under RCFC 52(c) against (not for) Wilmington based in part on the United States’ affirmative defense that its failure to exhaust administrative remedies was excusable.”
6. “Whether Congress’ command that 33 U.S.C. § 1323(a) ‘shall apply notwithstanding any immunity… under any law or rule of law’ can be plausibly interpreted as excluding the United States’ traditional immunity from interest awards from this waiver.”
Dixon v. United States
As explained above, in this case Dixon presents the following issues:
1. Whether “[t]he Claims Court committed clear error by holding that ‘valid informal claims are only those that [have] not misled the [IRS] and [have been] accepted and treated by the IRS as valid claims. . . .’”
2. Whether “[t]he Claims Court ultimately erred in dismissing Dixon’s net investment income tax claim for lack of subject matter jurisdiction, or alternative, for failure to state a claim for which relief can granted.”
Jenkins v. United States
As stated above, in this case Jenkins presents the following the two issues:
1. “Whether the magistrate judge erred in holding that Mr. Jenkins could not assert a compensable takings claim arising from the federal government’s physical appropriation of his property outside of federal forfeiture proceedings simply because the federal government’s initial seizure fell under a limited exception for temporary deprivations in direct furtherance of law enforcement functions.”
2. “Whether the magistrate judge erred in dismissing Mr. Jenkins’ due-process claim despite the Little Tucker Act’s waiver of sovereign immunity for claims against the United States alleging that property was improperly exacted in contravention of due process.”
Solar Energy Industries Association v. United States
As stated above, the Government presents the following two issues:
1. “Whether, in using the term ‘modification’ in Section 204(b)(1)(B), Congress limited the President to ‘trade- liberalizing’ modifications, prohibiting the President from modifying a safeguard to revoke an improvidently-granted exclusion and to slow the rate at which the measure phases down in its fourth year.”
2. “Whether the trial court erred in treating the President’s actions to restore application of the safeguard measure to bifacial panels and to slow the rate at which the measure phased down in its fourth year as trade-restricting ‘increases’ to the safeguard measure.”