Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today we highlight:
- an article detailing how Judge Newman “asked the full D.C. Circuit to reconsider her constitutional challenge to the law her colleagues used to suspend her from hearing new cases”;
- a blog post reflecting on how former Federal Circuit Judge O’Malley recently “offered insights into . . . the evolving patent law”; and
- a blog post suggesting the Federal Circuit took “a different analytical path” in a recent decision “focusing on the claim limitation ‘clinically proven effective.’”
Michael Shapiro authored an article for Bloomberg Law detailing how Judge Newman “asked the full D.C. Circuit to reconsider her constitutional challenge to the law her colleagues used to suspend her from hearing new cases.” In the article, Shapiro points out how Judge Newman argued “the full appellate court should . . . revisit a precedent preventing the court from considering Newman’s arguments on the merits.” Shapiro notes how the D.C. Circuit panel’s decision “raised concerns that Newman had no path to raise her as-applied constitutional arguments.”
Rose Esfandiari penned a blog post for IPWatchdog reflecting on how former Federal Circuit Judge O’Malley “offered insights into . . . the evolving patent law.” According to Esfandiari, “Judge O’Malley expressed dissatisfaction with the America Invents Act (AIA), believing it harmed the development of patent law.” Furthermore, Esfandiari explains, “[r]egarding the lack of clarity in patent eligibility law, Judge O’Malley asserted that legislative action, specifically the Patent Eligibility Restoration Act (PERA) . . . is the only viable solution.” By contrast, Esfandiari notes, “Judge O’Malley praised the Bayh-Dole Act, describing it as a ‘brilliant idea’ that successfully fostered public-private partnerships and prompted innovation in medical devices.”
Dennis Crouch wrote a blog post for PatentlyO suggesting the Federal Circuit took “a different analytical path” in a recent decision “focusing on the claim limitation ‘clinically proven effective.’” In the post, Crouch indicates “[t]he Federal Circuit’s decision reflects the Court’s policy concern about preventing patentees from clawing back otherwise anticipated methods from the public domain.” He further suggests the decision in question “reveals some potential strategies for patent drafters.” For more information, check out the opinion in Bayer Pharma Aktiengesellschaft v. Mylan Pharmaceuticals Inc.