Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today’s report highlights:
- an article arguing that a recent decision by the Federal Circuit “may make defending patent infringement claims more challenging, time-consuming and expensive, but it also has unwittingly complicated similar patent infringement proceedings involving the same patents and their appeals”;
- a blog post suggesting that, in a recent decision related to agency deference, the Federal Circuit’s “approach to the analysis [was] wrong”;
- a piece reporting how “Commerce Secretary Howard Lutnick has decided to end all current appointments to both the Patent Public Advisory Committee (PPAC) and Trademark Public Advisory Committee (TPAC), effective immediately”; and
- an article suggesting a recent decision by the Federal Circuit “expands which intellectual property (IP) owners can seek relief before the U.S. International Trade Commission (ITC) to block the import of infringing products into the U.S.”
Art Licygiewicz and Ryan Short co-authored an article for Law 360 arguing that a recent decision by the Federal Circuit “may make defending patent infringement claims more challenging, time-consuming and expensive, but it also has unwittingly complicated similar patent infringement proceedings involving the same patents and their appeals.” The co-authors claimed how plaintiffs asserting patent infringement may now “choose to withhold some of their strongest claims if they are immaterially different from the originally asserted claims, to gain a tactical advantage.” According to these authors, when this occurs, “everything from a district court’s scheduling orders to the filing of inter partes review, or IPR, petitions to subsequent appeals will be affected.” For more information, check out the relevant opinion in Kroy IP Holdings, LLC v. Groupon, Inc.
Dennis Crouch penned a blog post for PatentlyO suggesting that, in a recent decision related to agency deference, the Federal Circuit’s “approach to the analysis [was] wrong.” Crouch argued that “the ‘committed to agency discretion by law’ exception to judicial review under 5 U.S.C. § 701(a)(2) typically refers to discretion committed by statute,” but “the Federal Circuit relied on discretion granted by the agency’s own regulation at 19 C.F.R. § 210.4(d)(1)(ii) and does not grapple with the statutory distinction.” For more information, check out the relevant opinion in Realtek Semiconductor Corp. v. International Trade Commission.
Gene Quinn and Steve Brachmann co-authored a piece for IP Watchdog reporting how “Commerce Secretary Howard Lutnick has decided to end all current appointments to both the Patent Public Advisory Committee (PPAC) and Trademark Public Advisory Committee (TPAC), effective immediately.” The co-authors explained that “Secretary Lutnick is expected to appoint new members to both public advisory committees (PAC) and move forward with public meetings for both committees in May 2025, as originally scheduled.”
Kevin J. Davis, Jeffrey S. Whittle, Joshua P. Davis, and Barry J. Herman co-authored an article for the National Law Review suggesting a recent decision by the Federal Circuit “expands which intellectual property (IP) owners can seek relief before the U.S. International Trade Commission (ITC) to block the import of infringing products into the U.S.” The co-authors assert how the decision “greatly expands the types of investments, expenses, and activities that a complainant may use to satisfy the economic prong of the domestic industry requirement.” For more information, check out the relevant opinion in Lashify, Inc. v. International Trade Commission.