Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today we highlight:
- an article reporting how “Costco has sued the Trump administration for a refund of the tariffs it has paid on imported goods”;
- an article discussing how “[t]here are a number of alternative statutes that the administration could rely on to issue” tariffs “instead of IEEPA” if President Trump’s tariffs are struck down by the Supreme Court;
- a blog post arguing recent Federal Circuit decisions “establish that the ‘final and nonappealable’ language of 35 U.S.C. § 314(d) bars virtually all judicial oversight of [inter partes review] institution decisions, whether framed as constitutional due process claims, statutory ultra vires arguments, or Administrative Procedure Act challenges”; and
- a blog post recounting how the Supreme Court denied certiorari in “a case that asked the Justices to clarify U.S. Court of Appeals for the Federal Circuit precedent around using ‘after-arising technology’ to hold a patent invalid in the context of patent-infringement suits.”
Jenny Gross authored an article for The New York Times reporting how “Costco has sued the Trump administration for a refund of the tariffs it has paid on imported goods.” According to Gross, “Costco argues that the Trump administration’s implementation” of the tariffs “has created chaos.” Gross further points out that the lawsuit indicates that “[t]he tariffs have been ‘threatened, modified, suspended, and reimposed, with the markets gyrating in response.’” Gross notes, however, that the White House “has said in the past that its use of the IEEPA is lawful because the law gives the president the authority to ‘regulate’ the ‘importation’ of foreign property to deal with emergencies.” For more information on the underlying case challenging these tariffs, check out Trump v. V.O.S. Selections, Inc.
Clark Packard and Stan Veuger wrote an article for Foreign Policy discussing how “[t]here are a number of alternative statutes that the administration could rely on to issue” tariffs “instead of IEEPA” if President Trump’s tariffs are struck down by the Supreme Court. The authors suggest “the administration could turn to Section 122 of the Trade Act of 1974,” given that “[t]hat provision empowers the president to address ‘large and serious’ balance-of-payments deficits through import surcharges of up to 15 percent, import quotas, or some combination of the two.” The authors also point out how “[t]he same law’s Section 301 . . . offers another avenue for reconstructing IEEPA tariffs, one where the president enjoys wide unilateral authority.” Again, for more information on the underlying case, check out our case page.
Dennis Crouch authored a blog post for PatentlyO arguing recent Federal Circuit decisions “establish that the ‘final and nonappealable’ language of 35 U.S.C. § 314(d) bars virtually all judicial oversight of [inter partes review] institution decisions, whether framed as constitutional due process claims, statutory ultra vires arguments, or Administrative Procedure Act challenges.” Crouch indicates the “Federal Circuit has closed the courthouse doors on the second wave of challenges to the USPTO’s restrictive new IPR institution policies.” Crouch suggests “[t]he practical effect is stark: accused infringers now have no meaningful avenue to contest the USPTO’s decision to deny IPR, even when those denials rest on criteria found nowhere in the America Invents Act.”
Eileen McDermott penned a blog post for IPWatchdog recounting how the Supreme Court denied certiorari in “a case that asked the Justices to clarify U.S. Court of Appeals for the Federal Circuit precedent around using ‘after-arising technology’ to hold a patent invalid in the context of patent-infringement suits.” McDermott points out how “[s]everal amici weighed in, supporting the petitioners or urging the Court to grant the petition.” McDermott further explains how “[t]hose amici agreed that there is conflicting precedent from the Federal Circuit on after-arising technology.” McDermott highlights a comment made by Peter Harter, whom she quotes as warning that “conflicting precedent in this space is threatening U.S. competitiveness with China in the biopharma race.” For more information on the case, check out the case page in MSN Pharmaceuticals, Inc. v. Novartis Pharmaceuticals Corp.