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 three new opinions, one in a case related to the rulemaking authority of the Department of Veterans Affairs, another in a takings case related to water rights, and another related to patents alleged to be improperly listed in the FDA’s Orange Book. We also highlight five new cases, two related to trade agreements, two related to takings claims, and one patent case. Finally, we note new briefing in a patent case we have been tracking. Here are the details.
New Opinions
Metropolitan Area EMS Authority v. Secretary of Veterans Affairs
In this case, the Federal Circuit reviewed a rule promulgated by the Secretary of Veterans Affairs that permitted VA to pay the lesser of the actual charge or the Medicare fee schedule (MFS) amount for all non-contract ground and air ambulance transports. The petitioners in this case sought review of this rule. In an opinion authored by Judge Stoll and joined by Judges Lourie and Stark, the Federal Circuit granted the petition and set aside the rule as not in accordance with law given the governing statute. Click here for our opinion summary.
City of Fresno v. United States
In this takings case, the Federal Circuit reviewed a dismissal by the Court of Federal Claims and a grant of summary judgment in favor of the United States. Parties to the California Central Valley Project sued the United States claiming they were entitled to water the United States failed to distribute after a drought in 2014. In an opinion authored by Judge Stark and joined by Chief Judge Moore and Judge Clevenger, the Federal Circuit affirmed the lower court’s dismissal and grant of summary judgment. Check out our opinion summary for more details.
Teva Branded Pharmaceutical Products R&D, Inc. v. Amneal Pharmaceuticals of New York, LLC
In this patent case that attracted seven amicus briefs, Amneal alleged that Teva delayed the entry of generic products into the market by improperly listing certain patents in the Orange Book. The District of New Jersey agreed and required Teva to delist its patents from the Orange Book. Teva appealed, and the Federal Circuit stayed the lower courts order pending its resolution of the appeal. Late last month, in an opinion authored by Judge Prost and joined by Judge Taranto and Hughes, the Federal Circuit lifted the stay and affirmed the district court’s delisting order. Click here for our opinion summary.
New Cases
Dinh v. United States
In this takings case, Dinh argued in its opening brief that the lower court improperly granted dismissal “based on its mistaken conclusion that actions taken under a federal statute authorizing those actions cannot constitute a per se taking.” To the contrary, he explained, without “Congress’ enactment of the Puerto Rico Oversight, Management, and Economic Stability (‘PROMESA’) . . . there would be no case pending before [the] Court to review.” By enacting PROMESA, he continued, Congress “intentionally authorized the creation of the Oversight Board and authorized the actions that abrogated Puerto Rican law that otherwise flatly prohibited the destruction of the value of the Bondholders’ securities.” Therefore, he concluded, the Bondholders “lost a significant portion of the principal and interest each [] Bondholder was entitled to and,” as a result, “the federal Government could be held liable for an unconstitutional taking of the Bondholders’ property rights.”
HMTX Industries LLC v. United States
In its opening brief, HMTX argued that the U.S. Trade Representative’s tariffs “on hundreds of billions of dollars of imported Chinese goods are ultra vires and procedurally infirm.” HMTX explained that the USTR’s “discretionary” power permits her to “‘modify or terminate’ a discretionary Section 301(b) action in two circumstances—neither of which [were] present here.” First, it argued, the Court of International Trade improperly upheld her action under Section 307(a)(1)(B) because the action addressed “retaliatory acts by China beyond the specific investigated practices found to justify the original.” Second, HMTX contended, Section 307(a)(1)(C) “authorizes USTR only to terminate or ratchet down a discretionary action when it is ‘no longer appropriate.’” HMTX also claimed the Court of International Trade “erred in giving USTR a do-over” when it initially “failed to consider, let alone respond to, thousands of comments lodging significant objections to the proposed” tariffs. Lastly, HMTX alleged the Court of International Trade wrongly upheld “duties based on a remand determination offering conclusory and post hoc responses that ultimately rested on the President’s say-so rather than consideration of all the relevant statutory factors.”
Marmen Inc. v. United States
Marmen appeals a judgment of the Court of International Trade, which sustained a final antidumping duty determination that assigned a dumping margin on Marmen, a Canadian wind tower producer. In its opening brief, Marmen argued that the Department of “Commerce’s conclusions in the Final AD Determination regarding cost smoothing, Marmen Inc.’s cost reconciliation, and differential pricing, and the CIT’s decisions sustaining Commerce’s conclusions,” merit reversing the CIT’s decision on the three issues of the case.
United Water Conservation District v. United States
In its opening brief, United Water Conservation District explained that the case turns on whether “the taking of United’s California beneficial-use water right alleged in United’s Complaint” is “properly analyzed as a physical taking or a regulatory taking.” According to United, if the complaint is “considered a physical taking, as Supreme Court precedent dictates,” then the claim “is unquestionably ripe for adjudication” and the “trial court’s judgment should be reversed.”
United States v. Gilead Sciences, Inc.
In this patent case, the United States appeals a jury verdict that the asserted claims of three patents are invalid. In its opening brief, the government argues that the jury’s verdict regarding anticipation lacked substantial evidence because there “was no independent corroboration,” beyond paid testimony, of public use. In fact, it argued, “[t]he most contemporaneous evidence” indicated the witness did not prescribe the “required two-drug combination.” As to obviousness, the government asserts that “Gilead . . . failed to establish that its three prior art references taught or suggested the efficacy limitation.” But even if the “Court finds substantial evidence of obviousness,” the government contends a new trial is warranted due to “repeated references to nonqualified prior art” during opposing party testimony and the lower court’s decision to preclude cross-examination. Lastly, as to the alleged lack of enablement, the government asserts that opposing party testimony lacked “any of the required analysis or supporting evidence” where the witness’s testimony “merely stated his position.”
New Briefing
Constellation Designs, LLC v. LG Electronics Inc.
In this patent case, LG Electronics Inc., LG Electronics U.S.A., Inc., and LG Electronics Alabama, Inc. appeal a district court’s grant of summary judgment of eligibility and its order denying judgment as a matter of law on noninfringement and no damages. In their opening brief, they argued that “Constellation’s four patents asserted against LG are ineligible under § 101, and Constellation failed to show infringement of those patents.” They contended “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 argued that “Constellation violated” precedent “by presenting a mix-and-match infringement case, using evidence about an industry standard . . . for at least one limitation of each asserted claim.”
In its response brief, Constellation Designs argued the district court “correctly held that the asserted claims are patent eligible under both” of the required steps. It said “[t]he claims provide a concrete improvement to digital-communications technology,” which produce “benefits that were not possible using earlier technologies.” It further contended that, “[e]ven if the patents are directed to abstract ideas, the innovative way of constructing non-uniform constellations disclosed by the claim is eligible for patent protection.” Additionally, it argued, “[t]he jury’s finding that LG infringed the asserted patents is supported by substantial evidence” and Federal Circuit precedent “do[es] not prevent a plaintiff from using a standard alongside other evidence of infringement.”
Since our last report, LG Electronics Inc., LG Electronics U.S.A., Inc., and LG Electronics Alabama, Inc., filed their reply brief. They argue that Constellation’s asserted claims “are patent-ineligible” because their “mathematical concept” of optimization fails to identify “any specific improvement” and, instead, “merely rehashes the abstract concept.” Moreover, they continue, Constellation fails “to show first that its claims are standard essential” by misinterpreting precedent “to save its infringement case.” Lastly, as to damages, they argue that Constellation’s expert “failed to apportion” based on appropriate comparability criteria “to support built-in apportionment” and “his sole adjustment (upward) for inflation contradicts the undisputable evidence.”