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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 a new opinion in a patent case raising a question related to what prior art may be considered during an inter partes review proceeding; four recent oral arguments in two trade and two takings cases; four new cases, including a federal personnel case, a government contract case, a trademark case, and a trade case. Here are the details.

New Opinion

Since our last update, the Federal Circuit issued an opinion in a case that attracted amicus briefs.

Lynk Labs, Inc. v. Samsung Electronics Co.

In this case, the Federal Circuit reviewed an appeal from a decision of the Patent Trial and Appeal Board in an inter partes review proceeding that certain patent claims are unpatentable in light of prior art. The oral argument focused on “whether the Board erred in determining that . . . a published and later abandoned U.S. patent application . . . can be applied in an IPR as a ‘printed publication’ under 35 U.S.C. § 311(b).” That statutory subsection says that “a petitioner in an inter partes review may request to cancel as unpatentable 1 or more claims of a patent . . . only on the basis of prior art consisting of patents or printed publications.” What the appellant and one amicus brief argued is that a patent application that never issues as a patent is not a patent nor does it qualify as a printed publication when its publication date is after the effective filing date of the patent subject to the inter partes review proceeding. The Federal Circuit, however, in an opinion authored by Judge Prost and joined by Judge Lourie and Judge Stark, affirmed the Board. It found no error in the Board’s unpatentability determinations using, as the relevant date for prior art purposes, the abandoned patent application’s filing date. For more details, check out our opinion summary.

Argument Recaps

Since our last update, the Federal Circuit heard oral argument in four cases that attracted amicus briefs.

Marmen Inc. v. United States

This month, the Federal Circuit heard oral argument Marmen Inc. v. United States, a trade case that attracted an amicus brief. In this case, the Federal Circuit is reviewing 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. Judges Prost, Taranto, and Chen heard oral argument. For more information, check out our argument recap.

United Water Conservation District v. United States

The Federal Circuit also heard oral argument in United Water Conservation District v. United States, a takings case that attracted an amicus brief. In this case, the Federal Circuit is reviewing a dismissal of a takings claim by the Court of Federal Claims. That court held that a restriction of water rights did not constitute a physical taking but rather a regulatory taking, which presented an unripe controversy. Judge Lourie, Judge Hughes, and Judge Gilstrap (sitting by designation from the Eastern District of Texas) heard the oral argument. For more information, check out our argument recap.

HMTX Industries LLC v. United States

Last week the Federal Circuit heard oral argument in HMTX Industries LLC v. United States, a case we have been tracking because it attracted four amicus briefs. In this case, HMTX appeals a judgment by the Court of International Trade, which upheld the U.S. Trade Representative’s tariffs on Chinese goods. HMTX alleged USTR’s tariffs “on hundreds of billions of dollars of imported Chinese goods are ultra vires and procedurally infirm.” For more information, check out our argument recap.

Dinh v. United States

Last week, the Federal Circuit heard oral argument in Dinh v. United States, a takings case that attracted an amicus brief. In this, the Federal Circuit is reviewing a dismissal by the Court of Federal Claims of a takings claim. That court held that, because congressional action did not explicitly devalue certain bonds or require transferring funds to repay the bonds to the Puerto Rican government, there was no taking. Chief Judge Moore, Judge Stoll, and JFor more information, check out This is our argument recap.

New Cases

Since our last update we’ve identified four cases that attracted amicus briefs. Two of these cases are scheduled to be argued in February, while two are scheduled to be argued in March. Here are the questions presented in these cases:

Farrington v. Department of Transportation

  1. “Did the Board err in applying the legislatively overruled Huffman holding denying full 5 U.S.C. Section 1221(e) contributing factor/clear and convincing evidence regime protections to disclosures made pursuant to Farrington’s ‘ordinary duties’ and ‘normal channels?’”
  2. “Did the Board err in applying the heightened burden of proof standard of ‘reprisal’ prescribed by 5 U.S.C. Section 2302(f)(2) to Farrington’s disclosures?”
  3. “Did the Board err in failing to protect the NTSB independent and external disclosure channel for Farrington and FAA employees who participate in air carrier accident investigations?”
  4. “Did the Board err in failing to protect the voluntary internal FAA Division level disclosure channel for Farrington and MCO employees who accepted occasional open-door invitations to discuss any subject?”
  5. “Did the Board err in affirming the AJ conclusion that Farrington could not have objectively reasonably believed the FAA and AirTrans violated regulatory and safety rules?”

Hawaiian Dredging Construction Co. v. United States

  1. “Whether the Claims Court erred in dismissing the Complaint which contained well plead facts sufficient to support HDCC’s claims?”
  2. “Whether the Claims Court erred in dismissing portion of HDCC’s claims that were not subject to the Motion to Dismiss and not addressed by the parties or the Claims Court?”
  3. “Whether the Claims Court erred in denying the Motion for Reconsideration of and/or Relief From Order of Dismissal and Motion for Leave to Amend, when the proposed Amended Complaint addressed the perceived deficiencies in the Complaint?”

Curtin v. United Trademark Holdings, Inc.

  • “Whether the Board erred in dismissing Curtin’s opposition by misinterpreting the Lanham Act, misconstruing governing precedent, and disregarding this Court’s case law.”

Stupp Corp. v. United States

  1. “Whether it is reasonable for Commerce to use a statistical test in a manner inconsistent with the limitations on the methodology described by the methodology’s creator and relevant academic literature, and without any mathematical, logical, or empirical explanation why such a method may properly be used in the manner Commerce proposes?”
  2. “Whether it is reasonable for Commerce to use a methodology that Commerce itself admits may fail to correctly identify whether price differences are ‘significant,’ when the statute requires a finding whether price differences are ‘significant,’ and when an incorrect finding that price differences for specific sales are ‘significant’ necessarily distorts the count of the total number of sales with ‘significant’ price differences (for purposes of Commerce’s ‘Ratio Test’) and, as a consequence, the results of Commerce’s ‘differential pricing analysis’?”
  3. “Whether the overall number of cases in which the results were affected by Commerce’s use of its ‘differential pricing analysis’ can, in a vacuum, demonstrate the reasonableness of that methodology, when there is no evidence as to how many cases actually satisfied the relevant statutory criteria?”
  4. “Whether rules-of-thumb supported by observations of the heights of teenaged girls and the IQs of different types of students provide a universal yardstick for determining whether observed price differences are ‘large,’ when the prices are not set based on heights or IQs, and the distribution of prices is not the same as the distribution of heights and IQs?”