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 three opinions in cases that attracted amicus briefs: an Equal Pay Act case, a vaccine case, and a veterans case. Additionally, we highlight two new patent cases, new briefing in two patent cases, and oral arguments in nine cases last and this month. Here are the details.
Opinions
Since our last update, the Federal Circuit has issued three opinions in cases that attracted amicus briefs.
Boyer v. United States
In an opinion by Judge Dyk joined by Judges Chen and Stoll, the Federal Circuit found that “the [Equal Pay Act] applies equally to the United States as to other employers and that mere reliance on prior compensation standing alone is not an affirmative defense to a prima facie case under the EPA, unless the employer can demonstrate that the prior pay itself was not based on sex.” See our opinion summary for more information.
W.J. v. Secretary of Health and Human Services
In this case, the Federal Circuit reviewed 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. In an opinion by Judge Lourie that was joined by Judges Dyk and Stark, the Federal Circuit affirmed “the Court of Federal Claims’ conclusion that equitable tolling was not appropriate and, thus, that Appellants’ petition was not timely filed under 42 U.S.C. § 300aa-16(a)(2).” See our opinion summary for more information.
Beaudette v. McDonough
In this case, the Federal Circuit reviewed whether the Court of Appeals for Veterans Claims erred in issuing a writ of mandamus to allow the Board of Veterans’ Appeals to hear appeals of adverse decisions pertaining to the Department of Veterans Affairs’ Program of Comprehensive Assistance for Family Caregivers. In an opinion authored by Judge Moore joined by Judges Dyk and Stoll, the Federal Circuit held that, because the “Beaudettes had no adequate alternative means to obtain the relief requested” and the “Board has the authority under 38 C.F.R. § 20.104(c) to determine the types of appeals within its jurisdiction,” “the Veterans Court properly issued a writ of mandamus.” See our opinion summary for more information.
New Cases
Since our last update, we’ve identified two new cases that attracted amicus briefs.
Google LLC v. Sonos, Inc.
In this patent case, Sonos, Inc. appeals a judgment of of a district court, which found the patents in suit unenforceable under the doctrine of prosecution laches. Sonos argues in its opening brief that “[p]rosecution laches does not apply to Sonos’s zone-scene patents because the animating feature for that defense—an unfair timewise extension beyond the period Congress prescribed—is absent here.” Furthermore, Sonus argues, even if “prosecution laches could apply here, the district court
abused its discretion.” Specifically, Sonos emphasizes that the district court said “Sonos ‘diligently’ prosecuted the family of zone-scene patents for 13 years.” Additionally, Sonos argues, Google “could not have been prejudiced by any prosecution delays because Sonos had patent claims covering all zone scenes (overlapping or not) long before Google’s infringing products.”
An amicus brief was filed by the American Intellectual Property Law Association in support of neither party and in favor of reversal of the prosecution laches holding. Another amicus brief was filed by the Alliance of US Startups & Inventors for Jobs (“USIJ”) in support of the appellant and reversal.
Alnylam Pharmaceuticals, Inc. v. Moderna, Inc.
In this patent case, Alnylam Pharmaceuticals appeals a judgment of the district court, which limited claim terms to a specific definition. Alnylam argues in its opening brief that the claim terms “branched alkyl and branched C10-C20 alkyl 12 should be given their ordinary and customary.” According to Alnylam, the district court “committed legal error when it narrowed the terms to exclude 2-carbon groups” Furthermore, Alnylam argues, the district court incorrectly held “that the specification evinces a clear intent to limit the plain claim scope through lexicography.”
In its response brief, Moderna argues “[t]he district court correctly construed the Branched Alkyl Terms based on the patents’ clear lexicography of ‘branched alkyl.’” Moderna emphasizes that the definition “has all the hallmarks of lexicography” and that the “definition itself is clear and precise.” Additionally, it emphasizes, the use of the term “unless otherwise specified” is what “cements lexicographic intent.” Furthermore, Moderna argues, the “intrinsic evidence is consistent with the express definition.”
An amicus brief was filed by Biontech Se, Biontech Manufacturing GMBH, Pfizer Inc., and Pharmacia & Upjohn Co. LLC in support of the appellees and affirmance.
New Briefing
Since our last update there are two patent cases with new briefing.
Merck Sharp & Dohme B.V. v. Aurobindo Pharma USA, Inc.
In its opening brief, Merck Sharp argued “[t]his appeal presents a straightforward question of statutory construction: When is a reissue patent ‘issued’?” Moreover, it explained 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 criticized 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 argued “[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 argued “[t]he district court correctly held that patentees can get patent term extension credit regardless of the date the PTO reissues a patent.” It contended “[t]hat holding accords with statutory text, history, and the purpose of patent term extension.”
Since our last report about this case, Merck Sharp filed its reply brief. Merck Sharp maintains its arguments that the word “issued” has a “readily ascertainable meaning” and that therefore 35 U.S.C. § 156(c) has a “plain meaning: The term of a patent may be extended for a time ‘equal to the regulatory review period for the approved product which period occurs after the date the patent is [put forth officially].’” Therefore, Merck Sharp argues, “Congress said PTE must be calculated from “the date the patent is issued,” and the plain meaning of that command must control.”
AliveCor, Inc. v. International Trade Commission
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.” 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 argued the “Commission erred in finding infringement . . . by ignoring the plain meaning of the asserted claims.” Furthermore, Apple argued the “Commission erroneously held that AliveCor’s patent claims are not obvious.”
AliveCor filed a response and reply brief. In it, AliveCor maintained its arguments that “AliveCor invented the AFib-detection-and-confirmation technology at issue here, not Apple.” AliveCor argued “[t]he Commission was . . . correct to find a Section 337 violation as to AliveCor’s . . . patents.”
Since our last report about this case, Apple, Inc. filed its reply brief. In it Apple argues AliveCor failed to prove a domestic industry or infringement of valid patent claims.
Argument Recaps
Nine times last month and this month, the Federal Circuit heard oral argument in cases that attracted amicus briefs.
Ireland v. United States
In this case, the Federal Circuit is reviewing a decision by the Western District of Texas to grant a motion to dismiss for failure to state a claim in an unemployment benefits case under the Little Tucker Act. Ireland argues 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.” Here is are argument recap.
Jones v. Merit Systems Protection Board
In this case, the Federal Circuit is reviewing a judgment of the Merit Systems Protection Board. Jones argues 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.” Here is are argument recap.
Frantzis v. McDonough
In this case, the Federal Circuit is reviewing a determination by the Court of Veteran Claims that, under the Veterans Appeals Improvement and Modernization Act, a claimant is not entitled to an opportunity for a hearing before the Board member who ultimately decides the administrative appeal. 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.” Here is are argument recap.
Celanese International Corporation v. International Trade Commission
In this case, the Federal Circuit is reviewing a determination by the International Trade Commission that, under the post-America Invents Act on-sale bar provision, the sale of products made by a secret process invalidates a subsequently filed patent application on that process. Here is our argument recap.
Lemon Bay Cove LLC v. United States
In this takings case, the Federal Circuit is reviewing a judgment of the Court of Federal Claims, which held that the denial of a wetland permit by the United States Army Corps of Engineers was not a categorical taking or regulatory taking of Lemon Bay’s land. Here is our argument recap.
Backertop Licensing LLC v. Canary Connect Inc.
In this case, the Federal Circuit is reviewing a determination by the District of Delaware that an out-of-state non-party was in contempt of court for disregarding an order requiring her to testify at a hearing. Here is our argument recap.
Textron Aviation Defense LLC v. United States
In this case, the Federal Circuit is reviewing a judgment of the Court of Federal Claims, which granted the government’s motion to dismiss for failure to state a claim, or in the alternative for summary judgment, in a government contract case. Here is our argument recap.
Amarin Pharma, Inc. v. Hikma Pharmaceuticals USA Inc.
In this case, the Federal Circuit is reviewing a district court’s grant of a motion to dismiss inducement claims under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. Here is our argument recap.
Crocs, Inc. v. Effervescent, Inc.
In this case, the Federal Circuit is reviewing a determination by a judge in the District of Colorado to grant Crocs’ motion for summary judgment on a Lanham Act claim. Here is our argument recap.