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 one new Equal Pay Act case, the filing of new briefs in two patent cases, and the filing of new amicus briefs in another patent case. Here are the details.

New Case

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

Boyer v. United States

In this Equal Pay Act case, Boyer presents the following question:

  • “[O]nce a plaintiff has established a prima facie case under the Equal Pay Act, is an agency’s reliance on prior salary alone sufficient to carry its burden of establishing as an affirmative defense that the pay differential between the plaintiff and her comparator is justified by an ‘other factor other than sex,’ where the relevant statutory and regulatory scheme does not require the Agency to rely on prior salary alone?”

In her opening brief, Boyer argues “reliance on prior salary alone is insufficient to establish an affirmative defense under 29 U.S.C. § 206(d)(1)” and that the Federal Circuit should join the “majority of Circuits” on this issue. Furthermore, Boyer argues, “there is no inherent conflict between the Equal Pay Act’s prohibition on relying solely on a male comparator’s prior salary to justify a pay disparity” versus “the federal government’s statutory and regulatory scheme for setting pay for new hires.” Boyer stresses the government is “required to exercise discretion in considering prior pay in setting pay for new hires” so that it does not violate the Equal Pay Act.

This case attracted an amicus brief from the National Women’s Law Center and 46 additional organizations in support of Boyer and reversal. Notably, this case will be argued later this month. For more information on this case, check out our argument preview.

New Brefing

Since our last update, two patent cases attracted new briefing.

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

In this patent case, CH Lighting presents the following questions:

  1. “Whether the district court erred in excluding evidence on invalidity and granting partial JMOL for plaintiffs on that issue.”
  2. “Whether defendants are entitled to JMOL that claim 1 of the ’140 patent is invalid, or that products with LT2600 chips do not infringe that patent.”
  3. “Whether plaintiffs’ damages evidence was inadmissible and insufficient to support damages.”

In its opening brief, CH Lighting argued 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.” CH Lighting argued Jiaxing Super’s arguments regarding validity and infringement were contradictory. In addition, CH Lighting argued the “damages evidence was woefully deficient.”

Since our last report about this case, Jiaxing Super filed its response brief. In it, Jiaxing Super asserts the “district court correctly granted JMOL” that certain asserted claims were not invalid. It also contends “substantial evidence supported the jury’s verdict” one claim was infringed and was not proven invalid. Finally, it argues, “Defendants’ attacks on the damages award are misguided.

Salix Pharmaceuticals, Ltd. v. Norwich Pharmaceuticals Inc.

In this patent case, Salix notes the following and then presents the following two questions:

“Two patents claim methods of treating IBS-D using a specific dosage of rifaximin: 550 mg administered three times a day (1,650 mg per day) for 14 days.”

  1. “In finding these claims invalid as obvious, the district court relied on a press release (‘the RFIB2001 Press Release’), which quotes a named inventor and reports some results of a study that is discussed at length in the IBS-D Patents. Did the district court err by relying on the RFIB2001 Press Release as prior art under pre-AIA Section 102(a) without evidence that it reported work by ‘others’?”
  2. “Even considering the RFIB2001 Press Release, the highest dosage for which the district court found prior art reported successful results in treating IBS-D was 1,200 mg per day. Did the district court err in applying this Court’s ‘prior-artrange’ cases to find a reasonable expectation of success in treating IBS-D using the claimed dosage (1,650 mg per day) because it was ‘within the known range’? Issue Concerning Polymorph Patents: Two patents claim rifaximin in a form labeled ‘polymorphic form β.’”

Salix then notes the following and presents another question:

“Two patents claim rifaximin in a form labeled ‘polymorphic form β.’”

3. “At the time of the patent filing, it was unknown whether rifaximin was even polymorphic, much less whether form β existed. Did the district court err in finding that a skilled artisan would have had a motivation and reasonable expectation of success in preparing the claimed rifaximin form β?”

Norwich, which filed a cross appeal, presents the following questions:

  1. “Whether the District Court legally erred in implementing the remedy for an act of infringement mandated by 35 U.S.C. § 271(e)(4)(A) in its Final Judgment by declining to reference the hepatic encephalopathy (‘HE’) indication in Norwich’s ANDA – the only basis for the court’s infringement finding – and abused its discretion in denying Norwich’s motion to modify the Final Judgment under Federal Rule of Civil Procedure 60(b)?”
  2. “Whether Salix has demonstrated that the District Court committed clear and reversible error in finding that ‘there was no evidence’ that Salix’s September 2007 RFIB2001 Press Release disclosed information derived from the work of any inventor(s) and that the District Court therefore erred in finding the RFIB2001 Press Release is prior art under pre-AIA Section 102(a)?”
  3. “Whether Salix has demonstrated that the District Court committed clear error in finding that the prior art disclosed a dosage range of rifaximin that encompassed the claimed dosage of 1650 mg per day, or that a POSA would have a reasonable expectation of success in combining the prior art based on evidence of widespread off-label use, success reported in the prior art, and two clinical studies?”
  4. “Whether Salix has demonstrated that the District Court committed clear error in finding that the prior art disclosed crystalline rifaximin that a POSA would have been motivated to characterize and would have had a reasonable expectation of identifying rifaximin β having the claimed XRPD peaks and water contents?”
  5. “Whether the District Court erred in finding that Norwich did not prove that claim 4 of the ’199 patent is inherently anticipated?”

As for our most recent update, Salix recently filed its response and reply brief, while Norwich filed its reply brief.

New Amicus Briefs

New amicus briefs were filed in one case.

AliveCor, Inc. v. International Trade Commission

In this patent case, AliveCor, Inc. appealed a “determination of no Section 337 violation.” AliveCor argued the “the Commission legally erred” in ruling certain claims invalid under 35 U.S.C. § 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.”

Since our last report about this case, four new amicus briefs were filed by the following entities in support of Apple: