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 four new cases that attracted amicus briefs: three patent cases and a case concerning the jurisdiction of the Merit System Protection Board. Additionally, we identified a new amicus brief filed in a patent case and highlight recent oral arguments in another patent case. Here are the details.

New Cases

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

Merck Sharp & Dohme B.V. v. Aurobindo Pharma USA, Inc.

In its opening brief, Merck Sharp argues “[t]his appeal presents a straightforward question of statutory construction: When is a reissue patent ‘issued’?” Moreover, it explains why this question is important: “This answer matters because the Patent Act refers to ‘the date the patent is issued’ to determine a patent term extension (PTE) under 35 U.S.C. § 156(c).” According to Merck, “the ‘issue date’ [is] displayed in bold print on the cover of every certified copy of a patent.” Thus, the issue date of a reissue patent, according to Merck Sharp, is the date the reissue patent is “issued.” It criticizes the district court for finding that “a reissue patent is not ‘issued’ on the day the PTO issued it” but rather “that a reissue patent ‘inherits’ the issue date of the surrendered patent from which it derived.” Ultimately, Merck argues “[t]he fact that a reissue patent inherits ‘the unexpired part of the term of the original patent’ does not suggest that the reissue patent inherits the issue date of the original patent.”

In its response brief, Aurobindo Pharma argues “[t]he district court correctly held that patentees can get patent term extension credit regardless of the date the PTO reissues a patent.” It contends “[t]hat holding accords with statutory text, history, and the purpose of patent term extension.”

This case attracted an amicus brief from the Director of the U.S. Patent and Trademark Office in support of Aurobindo Pharma and affirmance.

Lynk Labs, Inc. v. Samsung Electronics Co.

In this patent case, Lynk Labs appeals a judgment of the Patent Trial and Appeal Board in an inter partes review proceeding finding all challenged patent claims unpatentable. In its opening brief, Lynk Labs argues the Board made multiple “errors in this IPR, each independently requiring reversal.” First, Lynk Labs argues the “Board erroneously construed” claim terms of the patent by failing “to apply the ordinary meaning of the claim language and fail[ing] to consider other claims providing clear guidance.” Further, Lynk Labs argues, the “Board legally erred by holding a secret abandoned U.S. patent application, that published only after the challenged patent’s priority date, can be applied as prior art in an IPR.”

This case attracted an amicus brief from VLSI Technology in support of Lynk Labs and reversal.

Backertop Licensing LLC v. Canary Connect, Inc.

In this patent case, Backertop Licensing appeals a judgment of a district court, which ordered a witness to appear in person in Delaware. Backertop argues in its opening brief that “Federal Rule of Civil Procedure 45(c) provides that an officer of an entity-party can only be compelled to attend a court proceeding in the State where the officer resides, works, or does substantial business.” And, according to Backertop, these requirements were not met with respect to Delaware. Furthermore, Backertop argues, it “was entitled to raise the validity of the underlying Order at the contempt proceeding, as it was an unappealable interlocutory order, the collateral bar doctrine does not apply to civil proceedings, and the Order is transparently invalid.”

In this case, the court appointed amicus curiae counsel, which filed an amicus brief in support of the district court’s actions.

Jones v. Merit Systems Protection Board

Kevin Jones alleges in his opening brief that the Department of Justice denied him due process “when it terminated him without advance notice and an opportunity to respond.” He asserts that, contrary to the MSPB’s decision, “as a preference eligible employee, [he] satisfied the definition of an ’employee’ with appeal rights.”

In its response brief, the Merit Systems Protection Board argues that, “at the outset,” the Federal Circuit “lacks subject matter jurisdiction over this appeal because it is a ‘mixed case’ and Mr. Jones has not waived his discrimination claim.” It argues that, for this reason, the case should be transferred to the U.S. District Court for the District of Columbia. Alternatively, MSPB argues, “the AJ correctly dismissed Mr. Jones’s administrative appeal” because Jones failed to show by “preponderant evidence” that he qualified as an “employee” as defined in the relevant statute. 

The National Treasury Employees Union filed an amicus brief in support of the petitioner and
reversal. Oral argument will take place in this case tomorrow. We’ll post an argument recap soon.

New Briefing

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

AliveCor, Inc. v. International Trade Commission

In this patent case, AliveCor, Inc. appealed a determination of no Section 337 violation. AliveCor argues the “the Commission legally erred” in ruling certain claims invalid under 35 U.S.C. § 101. In addition, AliveCor argues a “non-infringement determination should be reversed.” Apple, Inc. cross appealed, arguing the Federal Circuit should reverse the Commission’s finding of a Section 337 violation and its entry of remedial orders. With respect to its cross-appeal, Apple argues the “Commission erred in finding infringement . . . by ignoring the plain meaning of the asserted claims.” Furthermore, Apple argues the “Commission erroneously held that AliveCor’s patent claims are not obvious.”

Since our last report about this case, Medical Device Manufacturers Association filed an amicus brief in support of the International Trade Commission’s finding of a domestic industry. Medical Device argues “[s]ection 337 expressly provides that, if the ITC determines ‘that there is violation of this
section [337], it shall direct that the articles concerned . . . be excluded . . . unless, after considering [the public interest factors,] it finds that such articles should not be excluded.'” Medical Device asserts thatthe ITC has the “power to investigate and adjudicate whether importations amount to an unfair trade practice because the imported articles infringe intellectual property rights.

Argument Recap

Since our last update, the Federal Circuit heard oral argument in a case that attracted an amicus brief.

Salix Pharmaceuticals, Ltd. v. Norwich Pharmaceuticals Inc.

In this case, the Federal Circuit is reviewing a judgment of the District of Delaware ruling on patent infringement and invalidity claims. Salix Pharmaceuticals argues that Norwich “bore the burden of proof by clear and convincing evidence on all issues” related to a press release being considered prior art, including “whether the press release was by others.” Here is are argument recap.