Here is this month’s update on activity in cases pending before panels of the Federal Circuit where the cases involve 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 several new opinions issued, relating to takings, trade, patents, and trademarks. Also, there was one principal and response brief filed in a patent case and two new reply briefs filed in two other patent cases. There were no new cases pending before panels of the Federal Circuit that attracted at least one amicus brief. Here are the details.
New Opinions
United Water Conservation District v. United States
On April 2, the Federal Circuit issued an opinion authored by Judge Lourie in a water-rights takings case. The court held that “[t]he RPAs . . . operate as ‘regulatory restrictions on the use of’ a natural resource and ‘do not constitute physical takings,'” “the riparian-rights holders here needed to have physically diverted water for its property right to vest and thus become subject to a physical taking,” and a “regulatory takings claim, as alleged here, is not ripe until the rights holder obtains a final agency action.” Therefore, because United has “yet to have been denied an incidental-taking permit under Section 10 of the ESA, United has therefore not pleaded a ripe takings claim, and the district court properly dismissed its complaint for lack of subject-matter jurisdiction.”
See our opinion summary for more information.
Marmen, Inc. v. United States
On April 22, the Federal Circuit issued an opinion in this trade case. This case raised questions related to the use of Cohen’s d test in differential pricing analyses and judicial review of agency determinations.
In the opinion, Judge Prost, joined by Judges Taranto and Chen, addressed three main issues, “(1) Commerce’s determination to weight-average (or smooth) Marmen’s steel plate costs was not supported by substantial evidence or otherwise in accordance with the law; (2) Commerce erred by rejecting Marmen’s USD-to-CAD cost reconciliation; and (3) Commerce’s use of the A-to-T methodology based on Cohen’s d test was unreasonable.” First, the panel concluded “that Commerce did not act arbitrarily or inconsistently with its standard practice” and “agree[d] with the CIT that Commerce’s findings are supported by substantial evidence.” Next, it determined that “substantial evidence does not support Commerce’s decision to reject a minor correction to the cost-reconciliation worksheet to account for an exchange rate.” Finally, the panel “conclude[d] that it was unreasonable to rely on Cohen’s d test to determine whether prices differ significantly when the underlying data is not normally distributed, equally variable, and equally and sufficiently numerous.” Accordingly, the panel “vacate[d] Commerce’s calculated dumping margin based on the unreasonable use of Cohen’s d test to justify the A-to-T methodology” and “remand[ed] for Commerce to recalculate Marmen’s dumping margin.”
See our opinion summary for more information.
Stupp Corp. v. United States
On April 23, the Federal Circuit issued an opinion in another trade case in light of the Marmen case mentioned above. The opinion was authored by Judge Stark and joined by Judges Bryson and Lourie. The panel decided to “vacate and remand for Commerce to have an opportunity to ‘re-perform a differential pricing analysis’ that ‘may not rely on Cohen’s d test.'” Judge Stark explained how “SeAH’s U.S. pricing data fails to satisfy the statistical assumptions necessary to permit a reasonable application of Cohen’s d in a differential pricing analysis: ‘normal distributions, equal variability, and equal and sufficiently numerous data,'” and “Commerce’s assertion that these assumptions ‘need not be observed’ . . . is no longer a tenable position (if it ever was).” Thus, the panel held “that it was unreasonable for Commerce to use Cohen’s d as part of its differential pricing analysis in this case.”
We will post an opinion summary soon.
ATS Ford Drive Investment, LLC v. United States
On May 5, Judge Cunningham authored an opinion in a takings case that concluded, “[t]he presence of clear, binding Indiana law precludes Appellants’ request for certification,” thus declining to certify the question to the Indiana Supreme Court. Regarding the second question, the court concluded “that Indiana law at the time of the relinquishments is clear: the Releases conveyed to the Peru and Indianapolis Railroad Company fee simple estates.” Judge Cunningham reasoned that “the plain language of the charter supports a conveyance of a fee simple estate rather than an easement,” and “the Indiana Supreme Court held that Section 19 of the Charter provided that landowners conveyed fee simple titles, rather than easement, when standard releases of land pursuant to Section 15 of the Charter were executed.”
See our opinion summary for more information.
Regents of the University of California v. Broad Institute, Inc.
On May 12, the Federal Circuit issued an opinion in a patent case authored by Judge Reyna, which first concluded that, “the Board legally erred by requiring Regents’ scientists to know their invention would work to prove conception.” Next, the Panel determined that because “[t]he Board relied almost exclusively on Regents’ scientists statements expressing uncertainty about whether the experiments had succeeded and suggesting modifications to their CRISPR-Cas9 system to conclude that they did not havve a ‘definite and permanent idea,’ . . . the Board legally erred by focusing on Regents’ statements of uncertainty, without considering whether those statements led to modifications in their experiments that substantively changed their original idea.” Next, Judge Reyna explained that, “[i]t was legal error for the Board to categorically disregard evidence of purported experimental success by others.” The Panel also held that, “the Board legally erred by failing to consider whether Regents’ scientists described routine methods or skills in their disclosures at asserted conception dates, and whether they used routine methods or skill in subequent, purportedly successful experiments.” With regard to the Board’s written description, the Panel decided that they “correctly analyzed whether a person of ordinary skill in the art would understand that Regents had possession of the claimed subject matter.” Judge Reyna then turned to “Regents’ APA challenge to the Board’s written description,” and concluded that, “[t]he Board’s written description satisfies the APA,” and “thoroughly considered both parties’ arguments and the evidence supporting those arguments.” Lastly, the Judge Reyna addressed Broad’s cross-appeal on claim construction, and ultimately “agree[d] with Regents that Broad’s cross-appeal is moot.”
In sum, the Court of Appeals “affirm[ed] the Board’s written description decision and dismiss[ed] Broad’s cross-appeal as moot.” The Panel also held, “the Board incorrectly applied the legal standard for conception.” They “vacate[d] the Board’s determination as to conception and remand[ed] . . . to reconsider the issue of conception in a manner consistent with this opinion.”
See our opinion summary for more information.
Curtin v. United Trademark Holdings, Inc.
On May 22, the Federal Circuit issued an opinion in a trademark case. The panel, in an opinion authored by Judge Hughes, affirmed the Board’s judgment because, it concluded, the Board correctly found “that Ms. Curtin did not have statutory standing to oppose UTH’s registration of the RAPUNZEL mark.” Judge Hughes explained how “Ms. Curtin, who asserts only interests in the mark’s registration related to her status as a consumer of dolls, did not fall within the zone of interests to bring an opposition.” Judge Hughes explained that “Ms. Curtin’s evidence [was] too ‘limited’ and the damage ‘too remote’ to establish proximate causation.” According to Judge Hughes, “Ms. Curtin’s allegations of harm were at best downstream effects of harms to commercial actors and were too remote to support a reasonable belief in injury.”
We will post an opinion summary soon.
New Principal and Response Brief
VLSI Technology LLC v. OpenSky Industries, LLC
Since our last update about this case, the cross-appellant OpenSky Industries filed its principal and response brief. This is a patent case on an appeal from a judgment of the Patent Trial and Appeal Board in an inter partes review proceeding, raising the following three issues:
- “Whether the PTAB’s obviousness rulings must be set aside because they rest on an erroneous claim construction and are unsupported by substantial evidence or reasoned decisionmaking.”
- “Whether the Director’s sanctions rulings, including refusal to terminate the IPR, were arbitrary, capricious, contrary to law, or otherwise inconsistent with reasoned decisionmaking.”
- “Whether Intel was improperly joined because its IPR petition was untimely and thus not ‘properly file[d],’ 35 U.S.C. §315(c).”
In the brief, OpenSky first argued that “[t]he Director has no authority to award attorney fees against OpenSky” because “‘specific and explicit’ statutory authorization is required for an award of attorneys’ fees.” Next, they stated that “[t]he Director’s sanctions against OpenSky penalize conduct protected under the Noerr-Pennington doctrine, which shields petitioning activity and ‘ancillary’ litigation conduct from liability unless it qualifies as ‘sham litigation.'” They cited case law that explained that, “attorney fees are only awardable for costs that were ‘solely,’ ‘but for’ caused by sanctionable conduct.” Finally, OpenSky asserted that, “the Director improvised procedures, imposed gag orders, and employed fact- finding procedures that are well below statutory and constitutional guarantees” outlined in the Administrative Procedure Act.
New Reply Briefs
A.L.M. Holding Company v. Zydex Industries Private Ltd.
A reply brief was filed in a patent case raising the sole question of whether there is Article III standing.
A.L.M.’s Holding Company’s first criticized Zydex and noted that, “no other case is as legally or factually relevant,” other than a case that was decided last year. They argued that, under that case, “[t]he Court should apply” the broader interpretation of Article III standing “and conclude that Plaintiffs have Article III standing because Defendants’ unauthorized practice of the patents caused Plaintiffs monetary harm.” However, they argued that, even under the narrow interpretation, “the Plaintiffs, as the patent owners, hold all exclusionary rights ‘unless’ they have transferred ‘all’ of them away,” and the “Plaintiffs still retained ‘at least one exclusionary right’ under the Agreement.” This is evidenced in the implementation and enforcement conditions outlined in the Agreement. Finally, A.L.M Holding argued that Zydex’s interpretation and treatment of caselaw was “unpersuasive,” so “[t]he Court should reverse the judgment below.”
Ollnova Technologies, Ltd. v. Ecobee Technologies ULC
A reply brief was also filed by cross-appellant Ecobee Technologies ULC in a patent case raising the following question:
- “Whether prejudgment interest for a lump sum reasonable royalty damages award should be calculated from the time of the hypothetical negotiation, which coincides with the date of first infringement, or be limited to the time period allowed under 35 U.S.C. § 286.”
In the reply, ecobee argued that, first, “Ollnova mischaracterizes the record,” and stated that, “regardless of how Ollnova characterizes the record, the District Court committed an error of law that taints the verdict” through the jury instructions and verdict form. They also contended that the Petitioner’s “attempts to define an inventive concept fail because they lack support in the claim” and their “analogies to precedent fail” because “there is no data enhancement or unconventional distributed architecture.” Moreover, ecobee asserted that, for the ‘371 and ‘887 patent asserted claims, also do not provide “any technological improvement to any particular technology, as confirmed by the undisputedly conventional nature of the recite technology.” Ecobee also attacked the damages calculations, stating that, “Ollnova offers no record evidence that all patents were equal in value.” Ecobee went further, and concluded that, “Ollnova does not contend that it provided sufficient evidence to support damages on pre-Complaint sales, so its marking failures require a new trial.” Finally, ecobee argued that, “the verdict form’s single infringement question, which grouped all four patents’ claims together, requires a new trial because it undisputedly deprived ecobee of a decision on each counterclaim.”
New Cases
No new cases pending before panels of the Federal Circuit attracted an amicus brief.