Here is an update on activity in cases pending before panels of the Federal Circuit where the case involves 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 recent opinions, four new cases, new briefing in three cases, and a recent oral argument. Here are the details.
New Opinions
Since our last update, the Federal Circuit has issued opinions in four cases that attracted amicus briefs.
Bureau National Interprofessionnel Du Cognac v. Cologne & Cognac Entertainment
In this case, the Federal Circuit reviewed a judgment of the Trademark Trial and Appeal Board. As explained by the appellants, “[i]n a two-to-one split decision, the Board held registrable a mark prominently incorporating without permission the certification mark COGNAC, holding that the mark . . . , if used for hip-hop music and production services, was not likely to cause confusion or dilution.” The Federal Circuit vacated the judgment and remanded the case in an opinion authored by Judge Lourie that was joined by Judges Clevenger and Hughes. We plan to post our opinion summary soon.
Celanese International Corp. v. International Trade Commission
In this patent case, the Federal Circuit reviewed a determination by the International Trade Commission that, because Celanese sold products made using a patented process more than one year before the effective filing dates of the asserted patents, its asserted patent claims were invalid under the on-sale bar. In an opinion authored by Judge Reyna and joined by Judges Mayer and Cunningham, the Federal Circuit affirmed the judgment of the ITC. As explained by the court, under the America Invents Act “sales of products made using a secret process . . . [r]ender invalid [patentee’s] later-sought patent claims on that process.” We plan to post our opinion summary soon.
Darby Development Co. v. United States
In this takings case, the Federal Circuit reviewed a judgment of the Court of Federal Claims, which dismissed a takings claim by owners of residential rental properties. The Court of Federal Claims concluded the owners’ complaint failed to state a claim upon which relief could be granted. The Federal Circuit, however, reversed in an opinion authored by Judge Prost and joined by Judge Stoll, holding that the owners did state a claim for a physical taking and remanding the case for further proceedings. Notably, Judge Dyk dissented. We plan to post our opinion summary soon.
Freund v. McDonough
In this veterans case, the Federal Circuit reviewed whether the Court of Appeals for Veterans Claims erred in dismissing the case as moot and for denying Freund’s request for class certification. In an opinion authored by Judge Dyk that was joined by Judges Hughes and Stoll, the Federal Circuit vacated the judgment and remanded the case to the Court of Appeals for Veterans Claims. The Federal Circuit held both that the case was not moot because it “satisfie[d] the inherently transitory standard” and that the lower court “abused its discretion in finding that the adequacy and commonality requirements for class certifications were not met.” We plan to post our opinion summary soon.
New Cases
Since our last update, we have identified four cases that attracted amicus briefs.
Entropic Communications, LLC v. Charter Communications, Inc.
In its opening brief, the Electronic Frontier Foundation argues a district court erred in denying its motion to intervene and to unseal court records. It contends “[n]either controlling law nor the record support the district court’s conclusion that Charter and Entropic would be prejudiced by EFF’s intervention.” It maintains the district court’s denial of EFF’s motion to unseal should be reversed because “the court failed to acknowledge, must less apply, the Fifth Circuit’s law protecting public access to judicial records; it failed to conduct a document-by-document and line-by-line review of the materials before sealing them; and it never articulated specific countervailing interest that overrode the public’s right of access.” Finally, it rejects the district courts interpretation of a local rule as justification for its sealing practices, arguing it “conflict[s] with Fifth Circuit law protecting the public’s right of access.”
Three amicus briefs have been filed in this case supporting EFF. The briefs were filed by the Reporters Committee for Freedom of the Press and 19 Media Organization; Nora Freeman Engstrom, David Freeman Engstrom, Jonah B. Gelbach, Rose Carmen Goldberg, and Brianne Holland-Stergar; and Public Justice and Public Citizen.
Teva Branded Pharmaceutical Products R&D v. Amneal Pharmaceuticals of New York
In this patent case, Teva Branded Pharmaceutical Products R&D and Teva Pharmaceuticals USA challenge a district court’s injunction requiring them to delist five patents from FDA’s Orange Book. In their opening brief, they argue that “[t]he district court’s decision misapplies settled law making clear what it means to ‘claim’ a product: if the patent reads on the drug product, it ‘claims the drug’ as the statute uses that phrase.” In their view, [t]he district court’s statutory interpretation likewise disregards the applicable statutory definition of the term ‘drug,’ which includes not just any “article” that treats an illness or affects the body’s functioning, but also any ‘component’ of such an ‘article.’” The appellants seek reversal of the injunction and allowing the litigation “to proceed as an ordinary Hatch-Waxman case.”
Two amicus briefs have been filed in this case, both supporting reversal. These briefs were filed by AstraZeneca Pharmaceuticals and Sanofi-Aventis.
Constellation Designs, LLC v. LG Electronics Inc.
In this patent case, LG Electronics appeals a district court’s grant of summary judgment and its order denying judgment as a matter of law of noninfringement, and no damages. In their opening brief, they argue that “Constellation’s four patents asserted against LG are ineligible under §101, and Constellation failed to show infringement of those patents.” They contend that “the District Court ignored precedent holding that amorphous optimization, unbound by any specific requirement, is an ineligible abstract idea.” As to LG’s infringement claim, they argue that “Constellation violated Fujitsu and its progeny by presenting a mix-and-match infringement case, using evidence about an industry standard . . . for at least one limitation of each asserted claim.
One amicus brief has been filed in this case by Pearl TV, which supports reversal.
Arendi S.A.R.L. v. Oath Holdings Inc.
In this patent case, Arendi filed an opening brief seeking reversal of three determinations by the district court “that led to judgments in Google’s and Oath’s favor on Arendi’s claims against them for patent infringement.” Arendi first contends that its patents “are patent-eligible because they reach improvements in computer functionality.” It further argues that “the district court misconstrued the terms ‘document’ and ‘while it is electronically displayed,'” which led the court to “import[] limitations from the specifications.” Finally, it claims, “the court erred in granting summary judgment of no direct infringement” because “Oath made, sold or offered for sale infringing computer readable mediums.”
In Oath Holdings’ response brief, two appellees argue “Arendi lacks evidence of direct infringement, and cannot overcome dispositive evidence, including their own expert’s admissions, that Oath apps alone do not directly infringe the asserted claim.” Another appellee in this case, Google, filed its own response brief arguing that, because “Arendi has failed to challenge invalidity on appeal, its noninfringement argument (based on construction of the term ‘document’) provides no basis for disturbing” the judgment with respect to one patent.
One amicus brief has been filed in this case. LG Electronics Inc. and LG Electronics U.S.A., Inc. filed it in support of Google and affirmance.
New Briefing
Arlton v. AeroVironment, Inc.
We previously reported that, in its principal and response brief, AeroVironments maintained the district court erred in denying AeroVironment’s motion for attorneys’ fees because the Arltons repeatedly pressed claims that were plainly barred by 28 U.S.C. § 1498.
Since our last report, AeroVironment filed its cross-appeal reply brief. It contends it is entitled to its attorneys’ fees because “the Arltons have shown that nothing short of a fee award will deter them.” AeroVironment argues the district court erred by failing to consider “the totality of the circumstances,” suggesting that, “as a whole, the record shows that this is an exceptional case.”
REGENXBIO Inc. v. Sarepta Therapeutics, Inc.
In this patent case, REGENXBIO Inc. and the Trustees of The University of Pennsylvania challenge a grant of summary judgment by a district court. They argue in their opening brief that, “[f]or claims directed to compositions that incorporate features based on natural products, the patent eligibility analysis focuses on whether the claimed composition is ‘markedly different’ from any natural product.” They further contend that, “[u]nder that standard, the undisputed facts demonstrate that the cultured host cells of the . . . patent claims are markedly different from any natural product in both structure and function.” They argue that, “even though the facts were undisputed, the district court’s decision rests on unsupported and erroneous factual inferences that Sarepta invited the district court to draw in its favor.”
Since our last report, Sarepta Therapeutics filed its response brief. In it, Sarepta argues the “Asserted Claims do not reflect the creation of a ‘new’ composition with ‘markedly different characteristics.'” It contends that “structural differences resulting from the isolation of the rh.10 sequences from the surroundinggenetic material – such as the breaking of chemical bonds – are not sufficient for patent eligibility.”
Apple Inc. v. International Trade Commission
In its opening brief in this patent case, Apple argues the “Commission exceeded its statutory jurisdiction by holding Masimo satisfied the domestic industry requirement’s economic and technical prongs.” Apple also contends the “Commission . . . erred by holding the five remaining (of 103 original) asserted claims not invalid.” According to Apple, the “Commission also erred in finding infringement, particularly because its ruling depended on improperly construing ordinary words like ‘over,’ ‘above,’ and ‘through.’” Lastly, Apple argues, “Masimo’s suit was barred by prosecution laches” because, “[a]fter a twelve-year delay, Masimo opportunistically acted six days after Watch Series 6 launched.”
The App Association, Chamber of Progress, NetChoice and TechNet filed an amicus brief in support of Apple and reversal.
Since our last report, Intervenors Masimo Corporation and Cercacor Laboratories filed a brief arguing that Apple’s “‘standard of review’ section omits certain issues and includes some note at issue.” They further contend that the “Court need not review numerous arguments that Apple failed to properly raise before either the ALJ or the Commission because Apple has waived those arguments.”
Argument Recaps
In August, the Federal Circuit heard oral argument in one case that attracted an amicus brief.
Telefonaktiebolaget LM Ericsson v. Lenovo (United States) Inc.
In this case, the Federal Circuit is reviewing a district court’s order denying an antisuit injunction. The appellants argue that “[t]he threshold requirements for antisuit relief are present” and that the district court erred by “conflating Ericsson’s FRAND negotiating obligation with its FRAND licensing obligation.” Here is a link to our argument recap.