Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today we highlight:
- an article predicting “[w]hy the Supreme Court may choose to uphold Trump’s tariffs: ‘It would be incredibly disruptive to unscramble those eggs’”;
- an article indicating the “U.S. Supreme Court’s refusal to hear new patent cases for nearly three years has frustrated parties that suffer appellate losses and left the Federal Circuit as the final arbiter over legal disputes that divide the patent bar”;
- a blog post reporting how a “number of amici weighed in . . . to urge the U.S. Supreme Court to grant a petition asking the Justices to consider whether, “in a patent-infringement suit, a court may consider after-arising technology to hold that the patent is invalid under § 112(a) of the Patent Act”; and
- an article discussing how a “recent U.S. Court of International Trade (CIT) ruling — now on appeal to the U.S. Court of Appeals for the Federal Circuit — threatens to impose retroactive duties on importers of solar cells and modules.”
Lily Lazarus authored an article for Fortune predicting “[w]hy the Supreme Court may choose to uphold Trump’s tariffs: ‘It would be incredibly disruptive to unscramble those eggs.’” Lazarus references former Solicitor General Elizabeth Prelogar’s remark that “the Supreme Court now faces a ‘hard question’ about whether to disrupt a sitting president’s signature economic policy after it has already reshaped the global trade landscape.” Lazarus further observes that “broader uncertainty around U.S. trade policy could linger” if the President loses the case, “especially as Trump has signaled he would pivot to other legal authorities, like Section 232 of the Trade Expansion Act, to reimpose tariffs on specific industries.” For more information on the case, check out the case page in Trump v. V.O.S. Selections, Inc.
Michael Shapiro wrote an article for Bloomberg Law indicating “[t]he U.S. Supreme Court’s refusal to hear new patent cases for nearly three years has frustrated parties that suffer appellate losses and left the Federal Circuit as the final arbiter over legal disputes that divide the patent bar.” According to Shapiro, the Court’s “seeming lack of interest stems from the technical nature of patent litigation, the high court’s relative confidence in the specialists on the US Court of Appeals for the Federal Circuit, and the idiosyncrasies of the current justices.” Some patent attorneys suggested to Shapiro that one area might catch the Court’s attention, “petitions challenging the PTO director’s power to discretionarily deny patent challenges at the Patent Trial and Appeal Board.”
Eileen McDermott penned a blog post for IPWatchdog reporting how a “number of amici weighed in . . . to urge the U.S. Supreme Court to grant a petition asking the Justices to consider whether, “in a patent-infringement suit, a court may consider after-arising technology to hold that the patent is invalid under § 112(a) of the Patent Act.” As explained by McDermott, a Federal Circuit decision reversed “a district court’s determination that certain claims of a patent for Novartis . . . were invalid for lack of written description.” McDermott notes “[a]ll of the briefs agreed that there is conflicting precedent from the Federal Circuit on after-arising technology and urged the Court to take up the case.” For more information, check out the relevant case page in MSN Pharmaceuticals, Inc. v. Novartis Pharmaceuticals Corp.
Carl Valenstein, Raechel Anglin, and Casey Weaver wrote an article for Law360 discussing how a “recent U.S. Court of International Trade (CIT) ruling — now on appeal to the U.S. Court of Appeals for the Federal Circuit — threatens to impose retroactive duties on importers of solar cells and modules.” According to the authors, “[t]hen-President Joe Biden issued a presidential proclamation in June 2022, declaring a public emergency pursuant to Title 19 of the U.S. Code, Section 1318(a),” which temporarily suspended duties on those imports for two years. However, “[i]n December 2023, Auxin Solar and Concept Clean filed a complaint in the CIT, alleging that Section 1318(a) does not authorize the duty-free importation” of solar cells and modules. The authors note that the CIT sided with the plaintiffs and that the U.S. solar supply chain faces continued uncertainty, as “U.S. producers remain dependent on imported modules to meet demand for U.S. solar installation.”