Panel Activity

Here is an 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 a new patent case, a reply brief in another patent case, oral arguments in a takings case and a pro se case, and an opinion in a patent case. Here are the details.

New Case

Since our last update, we’ve identified one new case that attracted an amicus brief.

Jiaxing Super Lighting Electric Appliance, Co. v. CH Lighting Technology Co.

In this patent case, CH Lighting appeals a district court grant of partial judgment as a matter of law of no invalidity of asserted patents. In its opening brief, CH Lighting argues the district court excluded “highly relevant, admissible evidence of invalidity” based on “the legally unsustainable notion that expert testimony cannot support a jury finding unless the facts and data on which the expert relied are admitted into evidence.” Indeed, CH Lighting argues, the district court’s ruling “contradicts Rule 703’s directive that the facts and data on which an expert relies need not even be admissible—a fortiori, they need not be actually admitted.” Additionally, CH Lighting argues, Jiaxing Super’s arguments regarding validity and infringement were contradictory. CH Lighting emphasizes that it “urged that a prior-art reference’s use of impedance distinguished it” from a patent while, by contrast, it “urged that the accused products’ use of impedance” infringed the same patent. In addition, CH Lighting argued the “damages evidence was woefully deficient.”

This case attracted an amicus brief from the Zhejiang Province Association of Lighting Industry in support of CH Lighting and reversal.

New Briefing

Since our last update there is one case with new briefing.

US Synthetic Corp. v. International Trade Commission

In this patent case, US Synthetic appeals a decision of the International Trade Commission finding patent claims invalid for being directed to a patent-ineligible abstract idea. In its opening brief, US Synthetic argued that, “[u]nder step one of Alice, the Commission creates an arbitrary structure/nonstructural distinction, improperly labeling measurements of [polycrystalline diamond compact or] PDC properties as ‘side effects’ and ‘desired results’ in a way that misunderstands the underlying technology.” It also argued the “Final Determination . . . errs under Alice step two, failing to analyze each Asserted Claim in its ordered combination as directed by the Supreme Court, effectively collapsing the two-step Alice test into a one-step test.” Since our last report about this case, the International Trade Commission has filed its response brief. In it, the International Trade Commission argues “the Commission properly applied the Supreme Court’s and this Court’s § 101 precedent to the asserted claims.”

Argument Recaps

Since our last update, the Federal Circuit heard oral argument in two cases that attracted amicus briefs.

Darby Development Co. v. United States

In this case, the Federal Circuit is reviewing a decision by the Court of Federal Claims to grant the government’s motion to dismiss physical takings and illegal exaction claims. These claims relate to the Center for Disease Control’s eviction moratorium enacted during the onset of the COVID-19 pandemic. Here is our argument recap.

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

In this case, the Federal Circuit is reviewing a judgment of the Court of Federal Claims upholding a special master’s decision to grant a motion to dismiss a petition for compensation under the National Vaccine Injury Compensation Program. Notably, in this pro se case, the Federal Circuit appointed amicus curiae to file a brief and argue on behalf of the appellant. Here is our argument recap.


Since our last update, the Federal Circuit issued an opinion in one patent case we have been tracking.

In re Cellect, LLC

In this case, the Federal Circuit reviewed a judgment of the Patent Trial and Appeal Board invalidating Cellect’s patents under the doctrine of obviousness-type double patenting. In an opinion by Judge Lourie joined by Judges Dyk and Reyna, the Federal Circuit agreed with the Patent Trial and Appeal Board. In particular, the court held that “ODP for a patent that has received [Patent Term Adjustment], regardless whether or not a terminal disclaimer is required or has been filed, must be based on the expiration date of the patent after PTA has been added.” Judge Lourie explained how the court “agree[s] with the USPTO that PTA and PTE should be treated differently from each other when determining whether or not claims are unpatentable under ODP.” He highlighted how “[n]either Cellect nor the USPTO disputes that the asserted claims in the challenged patents would have been obvious variations of the respective claims in the invalidating ODP references.” In short, Judge Lourie agreed with “the Board’s determination that the reexamination requests raised a substantial new question of patentability.” He emphasized that “[a] substantial new question of patentability requires just that—a substantial new question.” As a result of its analysis, the Federal Circuit affirmed the judgment of the Patent Trial and Appeal Board. See our opinion summary for more information.