Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today we highlight:
- an article reporting how Judge Newman “petitioned the U.S. Supreme Court to lift her suspension from hearing new cases,” which has “lasted nearly two years”;
- a blog post analyzing how a recent Federal Circuit decision “presents an interesting question relating to damages calculation”;
- a blog post discussing how the Supreme Court’s recent denial of a petition “leaves in place the Federal Circuit’s determination that [published] U.S. patent applications are prior art as of their filing date in inter partes review . . . validity proceedings conducted under the pre-America Invents Act . . . statute; and
- an article suggesting the Patent and Trademark Office “has taken numerous notable steps” related to patent subject matter eligibility and that “these developments suggest a recalibration of the USPTO’s Section 101 approach, particularly for AI-related applications.”
Michael Shapiro authored an article for Bloomberg Law reporting how Judge Newman “petitioned the US Supreme Court to lift her suspension from hearing new cases,” which has “lasted nearly two years.” Shapiro explains how Judge Newman “has argued for several years that the suspension, stemming from a probe into her cognitive abilities and subsequent refusal to cooperate with demands for medical information and evaluation from her colleagues, is the equivalent of removal of a federal judge, an action reserved for the U.S. Congress under its impeachment powers.” Shapiro points out how Judge Newman’s petition argues “[h]er benching ‘threatens the principle of judicial independence and may violate the separation of powers.’”
Thomas Cotter penned a blog post for Comparative Patent Remedies analyzing how a recent Federal Circuit decision “presents an interesting question relating to damages calculation.” As explained by Cotter, Exafer argued Microsoft’s infringement enabled Microsoft “to reduce the central processing unit (CPU) usage in Azure servers, freeing up CPU cores to host additional” virtual machines. Exafer’s damages expert, Cotter continues, as a result used “as the royalty base the value of certain noninfringing virtual machines.” Cotter explains how the Federal Circuit concluded this approach was sufficiently tied to the patented invention. Cotter explains that, “as long as the additional revenue associated with hosting more VMs was, ex ante, a foreseeable consequence of the use of the patents in suit, a willing licensee would have taken that added benefit into account in determining how much it was willing to pay for a license.” You can read the underlying opinion in Exafer Ltd. v. Microsoft Corp. using this website.
Steve Brachmann wrote a blog post for IPWatchdog discussing how the Supreme Court’s recent denial of a petition “leaves in place the Federal Circuit’s determination that [published] U.S. patent applications are prior art as of their filing date in inter partes review . . . validity proceedings conducted under the pre-America Invents Act . . . statute.” Brachmann recounts how Lynk Labs argued the Federal Circuit created “a nonsensical Catch-22” by treating the asserted reference “as a printed publication admissible as prior art in IPR proceedings under 35 U.S.C. § 311(b)” while using the filing-date timing rule for patent applications under pre-AIA Section 102. For more information on the case, check out the case page in Lynk Labs, Inc. v. Samsung Electronics Co.
Reilley Keane and Kirk Sigmon authored an article for Law360 suggesting the Patent and Trademark Office “has taken numerous notable steps” related to patent subject matter eligibility, and that “these developments suggest a recalibration of the USPTO’s Section 101 approach, particularly for AI-related applications.” The authors note how, “[a]cross three memoranda issued in December last year, the office signaled a renewed emphasis on concrete technological improvements, and restraint in characterizing claims as abstract ideas.” According to the authors, moreover, the “first patents issued under Director John Squires have similarly suggested that the USPTO is shifting toward a pro-AI stance.” The authors maintain “2026 promises to be a landmark year in the clarification of patent eligibility procedures and guidance.”