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: a patent case, a takings case, a veterans case, and a Little Tucker Act case. Additionally, we highlight two new reply briefs filed in patent cases. Here are the details.
New Cases
Since our last update, we’ve identified four new cases that attracted amicus briefs.
C.R. Bard, Inc. v. AngioDynamics, Inc.
In its opening brief, C.R. Bard argues “[t]he district court erred when it again invalidated Bard’s claims based on subject matter ineligibility.” According to C.R. Bard, the Federal Circuit “already resolved eligibility when it held the same claims directed to eligible matter and reversed the district court’s first contrary judgment.” Bard emphasizes “[t]he mandate left no room for the district court to reconsider that issue.” Furthermore, Bard argues, the district court should not have granted a JMOL on indefiniteness; “[b]ecause indefiniteness was neither tried nor raised in any Rule 50 motion, the district court had no authority to grant JMOL on the issue.”
In its response brief, Angiodynamics argues “[c]lear-and-convincing evidence established that Bard’s” patents disclosed each claimed method step. Furthermore, Angiodynamics argues, the “grant of JMOL of anticipation was procedurally proper and consistent with the mandate,” and “[t]he district court properly disregarded evidence and argument premised on Bard’s ‘claim construction debacle.'”
An amicus brief was filed by Medical Components Inc. in support of Angiodynamics, Inc. and affirmance.
Lemon Bay Cove LLC v. United States
In its opening brief in this takings case, Lemon Bay argues the trial court “misapplied” precedent by failing to “credit the fact that the Corps denied Lemon Bay’s application with prejudice.” Lemon Bay argues the decision by the Corps removed “the possibility . . . it would ever allow residential development of [Lemon Bay’s] Property.” Furthermore, Lemon Bay argues, the trial court failed to consider “whether the Corps might conceivably approve some lesser impactful development” especially “where the Corps has given no indication that it might approve [Lemon Bay’s] development.” Moreover, according to Lemon Bay, the trial court “ignored” its “substantial efforts to avoid, minimize and mitigate the impacts of its proposed development.” Lemon Bay maintains the trial court did not consider “the undisputed fact that the Corps’ permit denial left the Property and bulkhead and fill rights economically idle.”
The government in its response brief argues precedent relied upon by Lemon Bay “is reserved for those extraordinary cases in which the regulation permanently prohibits all economic beneficial use of the property.” The government maintains that, when it denied Lemon Bay’s “twelve-unit development proposal,” it “did not foreclose any and all development plans or deprive Lemon Bay of all economic use of the parcel, as is required for a categorical taking.” In sum, the government contends, “Lemon Bay failed to demonstrate that that the Corps’ permit denial caused it any significant economic impact.”
In its reply brief, Lemon Bay argues the government “cannot fulfill its burden by inferring an improbable, speculative future prospect of obtaining a permit for a smaller fill footprint.” Lemon Bay emphasizes that, “[t]hroughout the permit process, administrative appeal process[,] and this case, the Government has given no indication of what, if any, smaller fill footprint ‘might’ be approved.”
An amicus brief was filed by Pacific Legal Foundation in support of Lemon Bay and reversal.
Frantzis v. McDonough
In his opening brief, Louis R. Frantzis argues Congress did not include anything in the Veterans Appeals Improvement and Modernization Act that authorizes the Board of Veterans’ Appeals “to switch judges, so that one judge can hear the case at the hearing but a different judge makes the final determination.” Additionally, he contends, the Veteran’s Court erred by refusing “to apply fair process to the outcome” of his case.
The Secretary of Veterans Affairs in his response brief argues Frantzis ignores “Congress’s revisions to Section 7107” and incorrectly argues the law continues to impose a “same board member” requirement on all cases. He asserts “Congress plainly removed” the requirement. He argues the Federal Circuit “must give the removal full force and effect” in order to avoid an absurd result. He argues the Veterans Court had the discretion to decide whether to apply the fair process doctrine. McDonough asks the court to affirm that his “interpretation of the relevant statutory provisions” is the “most natural and consistent reading.”
In his reply brief, Frantzis argues that McDonough incorrectly contends the Veterans Court had discretion to consider or not consider the fair process doctrine. He asserts Supreme Court precedent indicates “a court is permitted to follow authority that the court is aware of, even if it was not argued by the parties.” Additionally, Frantzis maintains, even if the Veterans Court had discretion, it abused it.
The National Law School Veteran’s Clinic Consortium and the Vietnam Veterans of America filed an amicus brief in support of the petitioner and reversal.
Ireland v. United States
In their opening brief in this Little Tucker Act case, the appellants argue the district court erred in dismissing their case. They say the Pandemic Unemployment Assistance Act (PUA) “required the Secretary to provide PUA to all covered individuals through September 6, 2021.” Appellants argue the plain language of the statute created a “mandatory payment obligation” to all “covered individuals,” which includes “anyone in the United States unemployed due to COVID-19 and ineligible for state unemployment benefits.” Appellants further claim “Texas’s withdrawal from the PUA program did not prevent the Secretary from fulfilling his obligation.”
In its response brief, the United States contends the district court correctly in found “nothing in the CARES Act requires (or even permits) the United States to make payments of PUA benefits directly to individuals.” The government argues the statute indicates the Secretary provides unemployment benefits “through agreements with the states.” According to the government, if Congress intended to authorize direct payments, it would have done so. Finally, the government asserts that, even if the appellants could show “another state could have administered the PUA program on Texas’s behalf,” the Little Tucker Act applies only to payments the Secretary was required to make directly.
In their reply brief, the appellants argue the PUA statute alone “gives rise to a Tucker Act claim” because the law mandates payment from the federal government. They contend “Congress deliberately differentiated the PUA statute from related programs,” such as voluntary state grant programs. Moreover, they say, the Secretary may have used “Congress appropriated funds” to pay persons affected directly.
Unemployed Workers United filed an amicus brief in support of reversal.
New Briefing
Since our last update there are two cases with new briefing.
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.”
Since our last report about this case, Backertop Licensing filed its reply brief addressing arguments from the amicus brief filed by the court appointed amicus curiae counsel. In the reply brief, Backertop argues that “a subpoena is not a court order, and so is not limited to the geographic boundaries set forth in Federal Rule of Civil Procedure 45(c).” Backertop emphasizes that “a subpoena issued by a lawyer is still an Order of the Court” and that “Rule 45(c)(1) begins: “A subpoena may command a person to attend a trial, hearing, or deposition only as follows . . . is is clear evidence of a restriction of the ability to make a nonresident non-party witness come from Texas to Delaware to testify.”
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, AliveCor filed a response and reply brief. In it, AliveCor maintains arguments that “AliveCor invented the AFib-detection-and-confirmation technology at issue here, not Apple.” AliveCor argues “[t]he Commission was . . . correct to find a Section 337 violation as to AliveCor’s . . . patents.”