Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today’s report highlights:
- an article discussing the legal battle between Judge Newman and “her fellow judges on the Washington, D.C.-based U.S. Court of Appeals for the Federal Circuit, who have tried to pressure her to step aside”;
- a blog post discussing a Federal Circuit opinion vacating an attorneys’ fees award in a patent case, an opinion authored by Western District of Texas Judge Alan Albright, who sat by designation;
- an article reporting on amicus briefs filed with the U.S. Supreme Court “urging it to leave in place” a Federal Circuit decision regarding the application of the obviousness-type double patenting doctrine to patent term adjustments; and
- an article discussing a Federal Circuit opinion holding that patent law’s on-sale bar still applies to secret processes after the America Invents Act.
Lawrence Hurley and Elleiana Green wrote an article for NBC News discussing the legal battle between Judge Newman and “her fellow judges on the Washington, D.C.-based U.S. Court of Appeals for the Federal Circuit, who have tried to pressure her to step aside.” According to the authors, Judge Newman’s case highlights a broader phenomenon of an “aging judiciary,” where “[o]ver 100 judges in federal district and appeals courts meet requirements to retire on full pay or take senior status but have not.” The authors claim “[t]here is recognition within legal circles that the current system is lacking” and discuss possible reforms.
Dennis Crouch authored a blog post for Patently-O, discussing the Federal Circuit’s decision in Realtime Adaptive Streaming LLC v. Sling TV, LLC, which vacated an attorneys’ fees award for $3.9 million due to the lower court’s improper reliance on “red flags.” Crouch notes how the opinion, written by Judge Alan Albright of the Western District of Texas, who sat at the Federal Circuit by designation, explained that “a yellow flag (or even series of yellow flags) is insufficient to justify an exceptional case finding.” Istead, the court “appears to be looking for true red flags” making litigation “objectively unreasonable.” Crouch claims this decision indicates courts should “focus on identifying truly exceptional behavior or true case weakness when considering attorneys’ fees.”
In an article for IPWatchdog, Steve Brachmann reports how plant gene editing company Inari Agriculture filed an amicus brief with the Supreme Court, “urging it to leave in place” a Federal Circuit decision relating “to the application of the obviousness-type double patenting (OTDP) doctrine in the context of patent term adjustments (PTA).” According to Brachmann, Inari argues the decision “has improved behaviors among patent applicants” and addresses concerns over “open gamesmanship of PTA by patent applicants.” Brachmann notes how the Patent and Trademark Office also filed briefs supporting the Federal Circuit’s ruling.
In an article picked up by Mondaq, York M. Faulkner discusses the Federal Circuit’s ruling in Celanese International v. International Trade Commission, which held that patent law’s on-sale bar still applies to secret processes after the America Invents Act. Faulkner discusses how the court found that its “pre-2015 sales of Ace-K, made using a secret process, triggered the on-sale bar,” invalidating Celanese’s patent claims. The article explains how the decision underscores that “secret commercial use of an invention before the critical date can invalidate a later-filed patent.”