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 new opinions and dispositions in a Little Tucker Act case, a case appealed from the Merit Systems Protection Board, a takings case, and a patent case. We also highlight three new cases that attracted amicus briefs: a patent case, a trademark case, and a veterans case. We also highlight new briefing in four patent cases as well as recent oral arguments in a patent case and government contract case. Here are the details.
New Opinions and Dispositions
Since our last update, the Federal Circuit issued three opinions and one summary affirmance in cases that attracted amicus briefs.
Ireland v. United States
In this case, the Federal Circuit reviewed a decision by the Western District of Texas to grant a motion to dismiss for failure to state a claim under the Little Tucker Act. In an opinion authored by Judge Stoll that was joined by Judges Lourie and Linn, the Federal Circuit affirmed the judgment. The Federal Circuit held that the district court properly dismissed the case because “[t]he plain language of [15 U.S.C.] § 9021(b) does not create a mandatory payment obligation between the Secretary and ‘any covered individual.’” See our opinion summary for more information.
Jones v. Merit Systems Protection Board
In this case, the Federal Circuit reviewed a judgment of the Merit Systems Protection Board, which dismissed Jones’s appeal for lack of jurisdiction. In an opinion authored by Judge Lourie that was joined by Judges Bryson and Stark, the Federal Circuit affirmed the judgment. The court held that the Board properly dismissed the case because the administrative judge “did not legally err or lack substantial evidence when reaching her determination that Jones was not an ‘employee’ as used in [5 U.S.C.] § 7513(d).” See our opinion summary for more information.
Lemon Bay Cove LLC v. United States
In this case, the Federal Circuit reviewed a judgment of the Court of Federal Claims in a takings case. The Federal Circuit summarily affirmed the judgment pursuant to Federal Circuit Rule 36.
Salix Pharmaceuticals, Ltd. v. Norwich Pharmaceuticals Inc.
In this case, the Federal Circuit affirmed the judgment of the District Court for the District of Delaware in a patent case. We plan to post an opinion summary later this week.
New Cases
Since our last update, we’ve identified three new cases that attracted amicus briefs.
Arlton v. AeroVironments Inc.
In this patent case, Paul and David Arlton seek reversal of a district court’s summary judgment rulings, as well as reversal of a denial of their motion for leave to file a first amended complaint. The Arltons argue in their opening brief that “the district court misinterpreted [a] statute, misapplied [the Federal Circuit’s] case law, and misconstrued the Government’s freedom of contract as absolute.” According to the Arltons, “[t]hese errors, individually and collectively, led the district court to conclude that . . . “the Government was not obligated to contract with” their company. And, “[b]ecause this conclusion cannot be sustained,” they argue, the Federal Circuit “should reverse the district court’s recognition of the Government’s purported consent and hold that AeroVironment is not immune from suit under [28 U.S.C. §] 1498.” Moreover, the Arltons argue, the district court incorrectly applied the “de minimis” exception. They contend the district court extended it “to cover governmental, i.e., commercial, uses of the Arltons’ technology,” which is contrary to law. Lastly, Arlton contends that the district court erred in denying the motion for leave to file a first amended complaint because to meet the court’s requirements Arltons would have to “bring claims before they were procedurally or substantively ripe.”
In its principle and response brief, AeroVironments argues the district court correctly granted summary judgment because “a patentee’s sole remedy for use or manufacture of a patented invention for the government” and with the government’s consent is by an action against the United States in the Court of Federal Claims. AeroVironments goes on to argue the district court correctly denied the Arltons’ motion for leave to amend their complaint because they filed over a month late and “failed to show good cause for their tardiness.” Lastly, AeroVironments contends the district court erred in denying AeroVironment’s motion for attorneys’ fees because the Arltons repeatedly pressed claims that were plainly barred by Section 1498.
An amicus brief was filed by the United States in support of AeroVironments and affirmance.
Bureau National Interprofessionnel Du Cognac v. Cologne & Cognac Entertainment
In their opening brief in this trademark case, appellants Bureau National Interprofessionnel Du Cognac and INSTITUT National Des Appellations D’Origine argue the Trademark Trial and Appeal Board incorrectly applied factors courts use to assess the likelihood of confusion between trademarks. Specifically, appellants argue the Board incorrectly applied the factors of fame, similarity of marks, and “relatedness of goods and services and respective customers.” Additionally, appellants argue that the TTAB’s decision relating to both their dilution claim was erroneous because it relied on an incorrect legal standard.
In their response brief, Cologne & Cognac Entertainment argues the appellants failed to establish the fame of their mark by failing to “create a nexus between its common law certification mark as opposed to other trademarks.” It further argues substantial evidence supports the TTAB’s decision. Moreover, it contends the goods and services of the marks in question are not related because the case law relied upon by the appellants applies only to famous marks.
An amicus brief was filed by Scotch Whisky Association; Colombian Coffee Growers Federation; Confederation Générale Des Producteurs De Lait De Brebis Et Des Industriels De Roquefort; Consejo Regulador del Tequila, A.C.; Consorzio del Prosciutto di Parma; Distilled Spirits Council of the United States, Inc.; Federation of the Swiss Watch Industry FH; Irish Whiskey Association; Kentucky Distillers’ Association; Napa Valley Vintners; and Organization for an International Geographical Indications Network. The brief supports the appellants and reversal.
Freund v. McDonough
In their opening brief in this veterans case, Mark Freund and Mary Mathewson argue the lower court erred in dismissing their petition. They contend the lower court incorrectly concluded that the claims were moot. Moreover, they argue, the court failed to distinguish between Freund’s claims for individual and class wide relief. They maintain the lower court erred in denying class certification by “relying on flawed analogies to cases concerning money damages and class member’s conflicting claims to those damages.”
In its response brief, the government argues the lower court correctly dismissed the petition as moot because the petitioners already received the relief they requested. Furthermore, the government contends, if the petition was not moot when it was dismissed by the lower court, it is now moot because “the named petitioners’ VACOLS appeal files have been reactivated, which was the only concrete relief requested.”
An amicus brief was filed by “16 Civil Procedure Professors” in support of appellants and reversal. Another amicus brief was filed by the National Veterans Legal Services Program and The National Organization of Veterans Advocates, also in support of appellants and reversal.
New Briefing
Since our last update there are four cases with new briefing.
Google LLC v. Sonos, Inc.
In this patent case, Sonos, Inc. appealed a judgment of a district court, which found the patents in suit unenforceable under the doctrine of prosecution laches. Sonos argued 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 argued, even if “prosecution laches could apply here, the district court abused its discretion.” Specifically, Sonos emphasized that the district court said “Sonos ‘diligently’ prosecuted the family of zone-scene patents for 13 years.” Additionally, Sonos argued, 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.”
We previously reported that 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, and that another amicus brief was filed by the Alliance of U.S. Startups & Inventors for Jobs (“USIJ”) in support of the appellant and reversal.
Since our last report about this case, the George Washington University Law School Intellectual Property and Technology Law Clinic filed an amicus brief in support of Sonos, Inc. and in favor of reversal.
C.R. Bard, Inc. v. AngioDynamics, Inc.
In its opening brief in this patent case, C.R. Bard argued “[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 emphasized “[t]he mandate left no room for the district court to reconsider that issue.” Furthermore, Bard argued, 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 argued “[c]lear-and-convincing evidence established that Bard’s” patents disclosed each claimed method step. Furthermore, AngioDynamics argued, 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.’”
We previously reported an amicus brief was filed by Medical Components Inc. in support of Angiodynamics, Inc. and affirmance.
Since our last report about this case, C.R. Bard filed its reply brief. Bard maintains that, on the issue of eligibility, AngioDynamics cannot overcome the Federal Circuit’s mandate, precedent, or the record. Furthermore, Bard contends, the district court made procedural and substantive errors in granting judgment as a matter of law.
Alnylam Pharmaceuticals, Inc. v. Moderna, Inc.
In this patent case, Alnylam Pharmaceuticals appealed a judgment of a district court, which limited claim terms to a specific definition. Alnylam argued 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 argued, 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 argued “[t]he district court correctly construed the Branched Alkyl Terms based on the patents’ clear lexicography of ‘branched alkyl.’” Moderna emphasized that the definition “has all the hallmarks of lexicography” and that the “definition itself is clear and precise.” Additionally, it emphasized, the use of the term “unless otherwise specified” is what “cements lexicographic intent.” Furthermore, Moderna argued, the “intrinsic evidence is consistent with the express definition.”
As we previously reported, 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.
Since our last report about this case, Alnylam Pharmaceuticals filed its reply brief. Alnylam argues Moderna did not clearly express intent to exclude alpha-branched secondary sources, because lexicography requires examining all evidence and the record does not establish clearly expressed intent. Alnylam further argues that, even if the court finds lexicography, the evidence still requires the claims to include alpha branched secondary carbon structures.
Lynk Labs, Inc. v. Samsung Electronics Co.
In this patent case, Lynk Labs appealed 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 argued the Board made multiple “errors in this IPR, each independently requiring reversal.” First, Lynk Labs argued 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 argued, 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.
Since our last report about this case, the Director of the United States Patent and Trademark Office filed a Brief for Intervenor. The Director argues that, by statute, a published patent application is a “printed publication.” Furthermore, the Director argues, Lynk Labs’s reading of the statute “would lead to anomalous results” and, as a result, its argument lacks merit.
Since our last report Samsung also filed its response brief. Samsung argues the Board correctly applied “the plain language of the claim.” Samsung also argues Lynk Labs’s challenge to the Board’s determination concerning the priority date of a patent application “misunderstands the statutory scheme and contradicts long-standing PTO practice of which Congress was aware when it set up the IPR regime.”
Argument Recaps
This month, the Federal Circuit heard oral argument in two cases that attracted amicus briefs.
Regents of the University of California v. Broad Institute, Inc.
Earlier this month, the Federal Circuit heard oral argument in Regents of the University of California v. Broad Institute, Inc., a patent case that attracted an amicus brief. In this case, the Federal Circuit is reviewing a judgment of the Patent Trial and Appeal Board in an interference proceeding concerning competing patent applications related to using the CRISPR-Cas9 gene-editing system in eukaryotic (e.g., plant or animal) cells. Judges Reyna, Hughes, and Cunningham heard the argument. For more information, check out our argument recap.
ACLR, LLC v. United States
Earlier this month, the Federal Circuit heard oral argument in ACLR, LLC v. United States, a government contract case that attracted an amicus brief. In this case, the Federal Circuit is reviewing a judgment of the Court of Federal Claims, which granted the government’s motion for summary judgment. The panel included Judges Prost, Hughes, and Stark. For more information, check out our argument recap.