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 four new cases: a takings case concerning a moratorium on eviction in response to the COVID-19 pandemic, two new related patent cases, and a pro se case. Additionally, we highlight opinions in two patent cases. Further, the new takings case and pro se case are both set to be argued next month. Here are the details.

New Cases

Since our last update, we’ve identified four new cases that attracted amicus briefs.

Darby Development Co. v. United States

In this takings case, Darby Development appealed a grant of a motion to dismiss its claims under the Rules of the United States Court of Federal Claims 12(b)(6). In its opening brief, Darby argued the trial court erred by concluding that “an action not expressly authorized by Congress cannot give rise to an actionable takings claim.” Darby maintained that, “under the Court of Federal Claims’ logic, while legitimate government action is subject to the Takings Clause, government agencies can avoid any obligation to provide just compensation by deliberately overstepping their authority.” That is incorrect, according to Darby, because “[t]he Court of Federal Claims’ dismissal order is contrary to well-established law and effectively turns the Takings Clause on its head.”

In its response brief, the United States asserted “[t]he trial court correctly dismissed the complaint for failure to state a claim.” According to the government, “longstanding Supreme Court precedent forecloses an attempt to premise a Fifth Amendment takings claim on agency action that was unauthorized by statute.”

This case attracted amicus briefs from the New Civil Liberties, National Association of Homebuilders, and National Association of Realtors. All support Darby and reversal.

AliveCor, Inc. v. International Trade Commission

In this patent case, AliveCor, Inc. appealed a “determination of no Section 337 violation.” In its opening brief, AliveCor argued the “the Commission legally erred” in ruling certain claims invalid under 35 U.S.C. § 101. According to AliveCor, “at step one of the § 101 analysis, the Commission erroneously concluded” that the claims are directed to an abstract idea. Further, AliveCor argued, “at step two, the Commission erred in failing to consider the record evidence showing that the claims contain inventive concepts sufficient to render them patent-eligible under § 101.” In addition, AliveCor argued a “non-infringement determination should be reversed for two reasons.” First, AliveCor contended, “the Commission failed to adopt the established and well-reasoned construction” of a limitation. Second, AliveCor continued, “the Commission compounded its error when it disregarded all of AliveCor’s cited evidence of infringement on the basis that it was inconsistent with the new claim construction.”

Apple, Inc. filed a response and cross appeal brief. It argued that the Federal Circuit “should reverse the Commission’s finding of a Section 337 violation” and its entry of remedial orders. According to Apple, however, “[t]he Court should affirm the Commission’s finding of no violation” as to the patent at issue in AliveCor’s appeal. With respect to its cross-appeal, in more detail Apple argued “[t]he Commission erred in finding infringement . . . by ignoring the plain meaning of the asserted claims.” Further, Apple argued, “[t]he Commission erroneously held that AliveCor’s patent claims are not obvious.” With respect to the appeal, however, it argued “[s]ubstantial evidence supports the Commission’s conclusion” of non-infringement, and it contended the “Commission correctly determined that . . . asserted claims . . . are not patent-eligible.”

This case attracted an amicus brief from Robert M. Wachter, MD in support of Apple Inc. and reversal.

AliveCor, Inc. v. Apple Inc.

In this patent case, AliveCor, Inc. appealed a Patent Trial and Appeal Board in an inter partes review proceeding. In its opening brief, Alivecor argued Apple’s expert “admitted lack of skill” during depositions. As a result, Apple alleged, his testimony is “unreliable and irrelevant as a matter of law and thus cannot support a finding of obviousness.” Alivecor also argued “the Board’s findings disregard clear teachings of the prior art references and read in teachings where none exist.” In addition, Alivecor argued, a remand is justified because “Apple did not comply with its ongoing, self-executing, and self-enforcing obligation to produce evidence relating to secondary considerations of non-obviousness.”

In its response brief, Apple, Inc. argued “[s]ubstantial evidence supports the Board’s factual finding” that prior art renders claims of AliveCor’s patents obvious. Apple argued the prior art, “as the Board observed”, teaches the claims of the AliveCor patents and that “AliveCor has no meaningful answer to the Board’s findings” regarding the prior art. Additionally, Apple stressed that its expert testimony “was not conclusory” and that “[s]ubstantial evidence supports the Board’s conclusions that a skilled practitioner would have found obvious the machine-learning claims of the AliveCor patents.” Furthermore, Apple contended, “the Board gave multiple rationales” for finding the prior art teaches the claimed subject matter.

This case attracted an amicus brief from the Medical Device Manufacturers Association in support of AliveCor, Inc. and reversal.

W. J. v. Secretary of Health and Human Services

In this pro so case, parents of a minor filed an appeal to reverse a grant of a motion to dismiss their claims under the Rules of the United States Court of Federal Claims 12(b)(6). The opening brief presented multiple issues for the court to review.

In its response brief, the Secretary of Health and Human Services argued that “Special Master Dorsey did not abuse her discretion in determining that petitioners failed to file a timely petition under the Vaccine Act.” Further, the Secretary argued, “[t]he Special Master had authority to dismiss petitioners’ claim under Rule 12(b)(6).” According to the government, she “did not exceed her legal authority by addressing the statute of limitations at the outset of the case, or by considering the facts presented in the medical record.” Additionally, the government maintained, that minor did “not establish[] a basis for equitable tolling of the statute of limitations, or a violation” of the minor’s Constitutional rights.

Notably, the Federal Circuit appointed an attorney to file an amicus brief in support of the appellant.


Since our last update, in cases we have been following because they attracted amicus briefs, the Federal Circuit issued opinions in two patent cases.

Realtime Data LLC v. Array Networks Inc.

In this case, the Federal Circuit reviewed a a district court’s grant of a motion to dismiss for invalidity under 35 U.S.C. § 101. In an opinion by Judge Reyna joined by Judge Taranto, the Federal Circuit agreed with the district court. The Federal Circuit found that, when analyzing the claims under step one of the test set forth in Alice Corp. v. CLS Bank International, “the claims of the asserted patents are ‘data manipulation’ claims that are recited at a high ‘level of result-oriented generality’ . . . that lack ‘sufficient recitation of how the purported invention[s] accomplish the results’ and “thus ‘amount[] to a mere implementation of . . . abstract idea[s].’” The court analyzed the claims under step two of the test set forth in Alice and held that “nothing in the individual limitations or their ordered combination that transform the claims into patent-eligible subject matter” and therefore the claims do “‘not contain an inventive concept.’” As a result of its analysis, the Federal Circuit affirmed the district court’s dismissal under Rule 12(b)(6) based on subject-matter ineligibility. See our opinion summary for more information

Teradata Corporation v. SAP SE

In this case, the Federal Circuit considered an appeal asking it to review a district court’s grant of summary judgment dismissing tying and trade secret claims. In an opinion authored by Judge Taranto and joined by Judges Lourie and Hughes, the Federal Circuit transferred the appeal to the Court of Appeals for the Ninth Circuit because “SAP’s patent-infringement claims are not compulsory counterclaims in this case.” As a result, the panel found, the Federal Circuit “lack[s] jurisdiction over this appeal, which instead belongs in the Ninth Circuit.” See our opinion summary for more information.

Upcoming Oral Arguments

There are two upcoming arguments in the month of September in cases that attracted amicus briefs.

Darby Development Co. v. United States

We discussed this case above. In this case Darby Development presents the following questions:

  1. “Did the Court of Federal Claims err as a matter of law in dismissing Plaintiffs’ takings claim?”
  2. “Did the Court of Federal Claims err as a matter of law in dismissing Plaintiffs’ alternative claim for illegal exaction where the Government compelled Plaintiffs to incur the expense associated with housing people the Government ordered to be housed in violation of their leases?”

W. J. v. Secretary of Health and Human Services

We also discussed this case above. In this case, a minor presents the following questions:

“Whether it was arbitrary, capricious, an abuse of discretion, clearly erroneous, or otherwise not in accordance with the law for:”

  1. “Judge Davis to uncritically accept that the Special Master had the authority to entertain and rule on the Secretary’s Rule 12(b)(6) motion even though Congress specifically refrained from granting the special masters authority to do so in proceedings under the Vaccine Act. Infra, pp. 26-29.”
  2. “the Special Master, then Judge Davis, to consider evidence or the lack thereof as a basis for deciding on the Rule 12(b)(6) motion in deviation from the U.S. Supreme Court’s Twombly/Iqbal plausibility standard and Rule 12(d) of the Rules of the Court of Federal Claims (RCFC). Infra, pp. 29-33.”
  3. “Judge Davis to find that the Special Master did not breach the U.S. Constitution’s separation-of-powers doctrine by ordering the Secretary to file a motion to dismiss our Petition. Infra, pp. 33-42.”
  4. “Judge Davis to dismiss our extraordinary circumstance equitable tolling claim based solely upon a purported law which she did not pinpointedly cite or quote, and which does not in fact exist. Infra, pp. 42-44.”
  5. “Judge Davis to find that our Petition did not contain sufficient well-pleaded factual allegations to find that our fraudulent concealment equitable tolling claim is a claim upon which relief can be granted under Rule 12(b)(6). Infra, pp. 44-51.”
  6. “Judge Davis to find that we do not have standing to bring a discrimination claim under the Fourteenth Amendment and Section 504 on behalf of W.J. Infra, pp. 57-60.”