Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today we highlight:
- an article predicting the Supreme Court will “treat the president’s newfound tariff power much like . . . previous executive actions that ‘discover’ new authority in vague statutes—and strike it down”;
- an article arguing the President’s foreign affairs power “does not give the president any authority over tariffs beyond what Congress clearly delegates”;
- a blog post discussing what the author describes as a “disturbing and inexplicable trend—a patent issued after more than six years in prosecution is presumed unenforceable as the result of prosecution laches”; and
- an article reporting how Judge Newman’s counsel said in a recent filing that “[t]he government shutdown is no excuse to halt proceedings” in her case “for reinstatement to the Federal Circuit.”
Brent Skorup wrote an article for City Journal predicting the Supreme Court will “treat the president’s newfound tariff power much like . . . previous executive actions that ‘discover’ new authority in vague statutes—and strike it down.” Skorup goes on to suggest that “[d]eference here to the president would clash with the Court’s recent skepticism toward unilateral executive action.” Moreover, Skorup cautions that, if the Supreme Court upholds these tariffs, “future presidents will be tempted to cloak domestic policies—on, say, climate change, immigration, or financial regulation—in the language of national security or foreign affairs.” For more information on the case, check out the case page in V.O.S. Selections, Inc. v. Trump.
Alan Wolff authored an article for the Peterson Institute for International Economics arguing the President’s foreign affairs power “does not give the president any authority over tariffs beyond what Congress clearly delegates.” In the article, Wolff points out that there might be reasons for the Supreme Court to “interpret IEEPA as a sufficiently broad delegation of authority.” On the other hand, Wolff says, “[t]he legislative–executive relationship in the field of trade has been one of co-equal branches, each taking the lead in its own area of competence and authority, and working in harmony together.” Again, for more information on the case involving President’s trumps tariffs, check out our case page.
Gene Quinn penned a blog post for IPWatchdog discussing what he describes as a “disturbing and inexplicable trend—a patent issued after more than six years in prosecution is presumed unenforceable as the result of prosecution laches.” According to Quinn, there were a “total of 1.2 million pending patent applications” as of January 2025, and “[t]his backlog coupled with the Federal Circuit‘s growing use of prosecution laches creates a perfect storm that will be catastrophic for any applicant or industry that relies on filing continuations . . . to obtain the full, fair and justified scope of protection for innovations.” In this regard, Quinn notes how inventor Gilbert Hyatt “intends to seek en banc review of the Federal Circuit’s prosecution laches doctrine.” According to Quinn, the petition will ask the court to consider “[w]hether the defense of ’prosecution laches‘ may bar a claim for issuance of a patent that meets the statutory criteria for issuance under the Patent Act.”
Emily Sawicki authored an article for Law360 reporting how Judge Newman’s counsel said in a recent filing that “[t]he government shutdown is no excuse to halt proceedings” in her case “for reinstatement to the Federal Circuit.” In the article, Sawicki explains how “the Federal Circuit moved for a deadline extension on the grounds that the government shutdown severely limited its counsel from the U.S. Department of Justice to litigate the case.” According to Sawicki, in response Judge Newman’s counsel argued that, “not only did the Justice Department have ‘contingency plans for cases where stays have been denied,’ . . . but it was also ‘completely unknown’ why the Federal Circuit was represented by the DOJ to begin with.”