Court Week

This week is Court Week at the Federal Circuit. In total, the court will convene seven panels to consider 36 cases. Of these 36 cases, the court will hear oral arguments in 27. The Federal Circuit is providing access to live audio of these arguments via the Federal Circuit’s YouTube channel. This month, two cases attracted amicus briefs. Here’s what you need to know about these two cases.

Sun Pharmaceutical Industries, Inc. v. Incyte Corporation

As explained in our argument preview, in this case, the Federal Circuit will review a decision by the Patent Trial and Appeal Board that the inter partes review petitioner “has shown by a preponderance of the evidence that the challenged claims are unpatentable.” Notably, in this case, Sun Pharmaceutical Industries was substituted for Concert Pharmaceuticals as the appellant to reflect a recent merger.

Sun Pharmaceutical Industries argues “[t]he official who denied [Sun]’s request for Director review was not a properly appointed principal officer.” It also contends the “Board applied the wrong legal standard to both the ‘motivation’ and ‘reasonable expectation’ components of the obviousness inquiry” and that the Board “erred in disregarding two objective indicia of nonobviousness.”

In response, Incyte Corporation asserts 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.”

An amicus brief in support of Sun Pharmaceutical Industries was filed by Bald Girls Do Lunch.

William Jay will argue for Sun Pharmaceutical Industries.

Mark Feldstein will argue for Incyte Corporation.

Also, Robert McBride will argue for the intervenor, the Director of the Patent and Trademark Office.

This argument is scheduled to take place on today, Monday, July 10 in Courtroom 201 at 10:00 AM Eastern.

Besanceney v. Department of Homeland Security

As explained in our argument preview, in this case, the Federal Circuit will review a finding by the Merit Systems Protection Board that disclosures made by Besanceney, a criminal investigator for the Transportation Security Administration, were not protected under the Whistleblower Protection Enhancement Act. 

Besanceney argues the “Board erred in finding that five disclosures made by Besanceney in relation to [a LaGuardia Airport] baggage theft investigation were not protected disclosures under the [Whistleblower Protection Enhancement Act].” He contends he “had a good faith belief that” the agents in charge “were violating rules, regulations, and the law when they pressured him to obtain federal search warrants, based on probable cause, when no probable cause existed.” Besanceney asserts the “Board further erred in not considering the prohibited personnel practices taken against Besanceney by TSA or the causal link between those actions and his protected disclosures.”

In response, the government argues the “administrative judge correctly concluded that Mr. Besanceney failed to demonstrate that he made any protected disclosures.” It further contends Besanceney “cannot substitute the board’s judgment with his subjective opinion” with regard to the reasonableness of his beliefs. According to the government, moreover, “Mr. Besanceney cannot demonstrate reversible error in the board’s application of the ‘reasonable belief’ test.”

An amicus brief in support of Besanceney and reversal was filed by the U.S. Office of Special Counsel.

John Harrington will argue for Besanceney.

Jana Moses will argue for the government.

This argument is scheduled to take place on Tuesday, July 11 in Courtroom 402 at 10:00 AM Eastern.