Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today’s report highlights:
- an article suggesting that, “although pursuit of an appeal to the Federal Circuit may under some circumstances prove to be quicker and less expensive, appeals to district courts are becoming increasingly attractive” ;
- an article discussing a recent petition in which an “owner of an invalidated background-check software patent urged the U.S. Supreme Court to consider the Federal Circuit’s suspension of 97-year-old Judge Pauline Newman, whose absence on the court the company says deprived it of a potentially sympathetic ear”; and
- a blog post discussing a recent Federal Circuit decision “holding that conclusory expert testimony is insufficient even for relatively simple technologies.”
Christopher P. Bussert and Jonathan E. Mosken contributed an article to Law.com suggesting that, “although pursuit of an appeal to the Federal Circuit may under some circumstances prove to be quicker and less expensive, appeals to district courts are becoming increasingly attractive given recent changes in the law and [Patent and Trademark Office] practice in defending these actions.” The authors explain how “Section 1071 of the Lanham Act provides parties two options for appealing adverse ex parte decisions from the Trademark Trial and Appeal Board (TTAB),” which include either an “appeal to the Federal Circuit . . . or to any U.S. district court.” According to the authors, “there may be considerable benefits to ex parte de novo appeals to the district courts rather than direct appeal to the Federal Circuit.”
Michael Shapiro wrote an article for Bloomberg Law discussing a recent petition in which an “owner of an invalidated background-check software patent urged the U.S. Supreme Court to consider the Federal Circuit’s suspension of 97-year-old Judge Pauline Newman, whose absence on the court the company says deprived it of a potentially sympathetic ear.” As explained by Shapiro, the petition in Miller Mendel Inc. v. City of Anna claims “Miller Mendel was robbed of ‘even having a chance that the most experienced appellate patent judge, and one of the harshest critics of Section 101 jurisprudence, could participate.'” Shapiro explains how Mendel suggests the “Court should take up its case because with Newman sidelined, it was effectively and unconstitutionally denied its ‘right to an unbiased tribunal.'”
Dennis Crouch authored a blog post for PatentlyO discussing a recent Federal Circuit decision “holding that conclusory expert testimony is insufficient even for relatively simple technologies.” According to Crouch, “[t]hroughout its 40-year history, the Federal Circuit has been largely negative toward the doctrine of equivalents.” He claims “[t]his negativity includes repeatedly taking decisions out of the jury’s hands based upon insufficient evidence of equivalency.” Crouch suggests that in Nextstep, Inc. v. Comcast Cable Communications LLC the “2-1 majority continues this trend.”