Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today we highlight:
- an article discussing “the process for paying back billions in tariffs the Trump administration has collected, should the justices rule those duties are illegal”;
- an article arguing “[a]n unusual combination of Supreme Court justices appears to be coalescing to strike down President Donald Trump’s global tariffs”;
- a blog post predicting “a 6-3 vote against the tariffs, with Justices Thomas, Alito, and Kavanaugh dissenting”; and
- an article explaining how “the U.S. Patent and Trademark Office has changed dramatically the manner in which it reviews petitions for inter partes review.”
Ari Hawkins wrote an article for Politico discussing “the process for paying back billions in tariffs the Trump administration has collected, should the justices rule those duties are illegal.” Hawkins points out how the lead counsel representing the group of small-business plaintiffs argued the “Court has wide discretion over whether and how to order any refunds.” Hawkins highlights how, on the other hand, “[t]rade and customs experts have repeatedly described any potential repayment process as a logistical ‘nightmare’ for both the federal government and the companies seeking compensation.” For more information on the case, check out the case page in Trump v. V.O.S. Selections, Inc.
Jason Ma authored an article for Fortune arguing “[a]n unusual combination of Supreme Court justices appears to be coalescing to strike down President Donald Trump’s global tariffs.” Ma cites a prediction that “conservative Amy Coney Barrett will likely join liberals Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson in going against Trump.” According to Ma, however, “Justice Brett Kavanaugh and Chief Justice John Roberts . . . ‘seem questionably likely at best’ to uphold the tariffs.” Again, for more information on this case, check out the relevant case page.
David Lat penned a blog post for Original Jurisdiction predicting “a 6-3 vote against the tariffs, with Justices Thomas, Alito, and Kavanaugh dissenting.” According to Lat, “[o]verall, the justices appeared skeptical of the tariffs.” Lat argues “[t]he Trump administration’s defense of the tariffs suffers from at least two tensions.” Lat suggests, first, the administration “needs to argue that IEEPA represents a sweeping grant of power to the president—but the broader the grant of power, the harder it is to defend under the major-question and nondelegation doctrines.” Lat goes on to say that, second, the administration must “argue that the tariffs at issue here are ‘regulatory’ rather than ‘revenue-raising’ tariffs.” But, Lat continues, it seems to him “a stretch to argue that tariffs capable of raising as much as $15 trillion in revenue are not ‘revenue-raising.’” Again, for more information on this case, check out the relevant case page.
Christopher Larus, William Manske, and James Rollins authored an article for Law360 explaining how “the U.S. Patent and Trademark Office has changed dramatically the manner in which it reviews petitions for inter partes review.” According to the authors, “[t]hese changes have the potential to substantially alter defense strategies in U.S. patent litigation.” They point out that “IPRs before the USPTO’s Patent Trial and Appeal Board have proven to be a favorable venue for parties challenging patent validity,” but note this is no longer the case given that “[r]ecent procedural changes concerning how IPR petitions are evaluated . . . have . . . swung the pendulum in favor of patent owners.” The authors suggest “[t]hese changes mean fewer circumstances under which an IPR is likely to be instituted and a need for litigants to reassess the role of IPRs in their litigation strategy.”