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Here is an update on activity in cases pending before panels of the Federal Circuit where the cases have attracted at least one amicus brief or the court has appointed amicus counsel. We keep track of these cases in the “Other Cases” section of our blog. Today, with respect to these cases, we highlight three recent opinions in cases raising questions related to military records, tax refunds, and invalidity for lack of enablement, and one order dismissing an appeal. In addition, we highlight three newly identified cases raising questions related to inter partes review proceedings, claim construction, and educational assistance benefits. As for new briefing, we highlight three response briefs in cases that raised questions related to infringement, claim construction, and educational assistance benefits; one principal and response brief in a case that raised copyright and patent questions; three reply briefs in cases that raised questions related to patent eligibility, claim construction, and educational assistance benefits; and seven new amicus briefs in one case that raised a question related to infringement. We also highlight two recent oral arguments in cases that raised questions related to claim construction and veterans educational assistance benefits. Here are the details.

Dispositions

Opinions

Since our last update, Federal Circuit panels have issued opinions in three cases that attracted amicus briefs: a case addressing military records, a tax case, and a patent case.

Bee v. United States

In this case, William Bee appeals the denial of his request to have his military records reflect medical retirement rather than voluntary separation. In an opinion authored by Judge Reyna and joined by Judges Clevenger and Chen, the court vacated the judgment and remanded the case. We will post an opinion summary soon.

Dougherty Electric, Inc. v. United States

In this case, Dougherty Electric appealed a dismissal by the Court of Federal Claims of a tax refund suit for lack of subject matter jurisdiction. In an opinion authored by Judge Prost and joined by Judges Lourie and Taranto, the court affirmed-in-part, vacated-in-part, and remanded the case. See our opinion summary for more information.

Wyeth LLC v. AstraZeneca Pharmaceuticals LP

In this case, Wyeth appealed a lower court’s grant of judgment as a matter of law of invalidity for lack of enablement. The case presented questions related to claim construction as well as whether pre-issuance provisional rights under the Patent Act extend to induced infringement. In an opinion authored by Judge Lourie and joined by Judges Linn and Hughes, the court affirmed the judgment of invalidity. See our opinion summary for more information.

Dismissal

Since our last update, a Federal Circuit panel has issued an order dismissing an appeal pursuant to Federal Rule of Appellate Procedure 42(b) where all parties in RAI Strategic Holdings, Inc. v. International Trade Commission submitted a joint stipulation of voluntary dismissal.

New Cases

Since our last update, we have identified two new patent cases that attracted amicus briefs and one new pro se case where the court appointed counsel as amicus curiae.

Google LLC v. Cellular South, Inc.

In this case, Google filed an appeal presenting the following questions:

  1. “Whether this Court has jurisdiction over a direct appeal from a decision of the PTO denying institution of an inter partes review where the appeal raises a colorable constitutional claim that the institution process violated the equal protection component of the Due Process Clause.”
  2. “Whether the PTO’s decision to deny institution of inter partes reviews for the ’954 and ’972 patents solely because both patents are over six years old violates the equal protection component of the Due Process Clause.”

Two amicus briefs supporting the appellant and reversal were filed.

In an amicus brief, US*Made and several other parties argue that the “USPTO’s actions are deeply prejudicial to amici’s members, who face billions of dollars in potential liability for asserted patents that the agency improperly issued–and now refuses to correct.”

In its amicus brief, the PTAB Bar Association argued the denial of “IPR petitions for patents older than six years without analysis on the merits” is “not a proper exercise of administrative ‘discretion.'”

In re Satius Holding, Inc.

In this case, Satius Holding filed an appeal presenting the following questions:

  1. “If the Board did not intend to deviate from its earlier construction, whether the Board faithfully applied this construction?”
  2. “If the Board did intend to deviate from its earlier construction, (a) whether the new construction is precluded by the doctrine of prosecution history disclaimer, and (b) whether the new construction is consistent with the intrinsic record?”

In its amicus brief, Samsung Electronics argues that “Satius essentially conceded at the oral hearing . . . that its broad claim . . . was known in the prior art.” Samsung further contended that “Satius’s argument that a ‘location’ requirement should be read into claim 1″ is “wholly unsupported.”

Loomis v. Collins

In this case, Loomis appeals a decision of the Court of Appeals for Veterans Claims. Notably, the court appointed counsel as amicus curiae. This case presents questions related to educational assistance benefits and the validity of a regulation issued by the Department of Veterans Affairs.

Response Briefs

Since our last update, three response briefs were filed in cases including amicus briefs or an appointed counsel as amicus curiae.

Arbutus Biopharma Corp. v. Moderna, Inc.

As a reminder, Moderna Inc.’s opening brief in this case presented the following question:

  • “Whether [28 U.S.C.] § 1498 provides the exclusive remedy—a suit against the United States in the Court of Federal Claims—for Plaintiffs’ claims of (1) direct infringement and (2) indirect infringement based on the vaccine doses Moderna manufactured in performing its C-100 Contract for the Government.”

Now, in its response brief, Arbutus Biopharma Corp. asserts “clear language and decades of settled precedent dictate that what matters when applying § 1498 is whether the purchased goods are ‘for the Government’ in the most straightforward and obvious sense—is the United States government the direct beneficiary or not?” It contends that, because Moderna “cannot meet the long-established direct-benefit test,” it “attempts to supplant it with two alternative rules that no court ever has articulated, much less endorsed.”

In re Satius Holding, Inc.

As a reminder, in this case, Satius Holding filed an appeal presenting the following questions:

  1. “If the Board did intend to deviate from its earlier construction, (a) whether the new construction is precluded by the doctrine of prosecution history disclaimer, and (b) whether the new construction is consistent with the intrinsic record?”
  2. “If the Board did not intend to deviate from its earlier construction, whether the Board faithfully applied this construction?”

In its response brief, the Patent and Trademark Office pointed out how the Board found “substantial evidence support[ing] the conclusion that claim 1 would have been obvious.” It argued the “Board properly construed” the relevant limitation “based on its plain and ordinary” meaning. It also said “Satius did not offer or request a specific construction” of a limitation before the Board. By not taking specific action, the PTO argued, Satius “forfeited the claim construction arguments that are the basis of its appeal.” It further contended that, even “if Satius has not forfeited those arguments, they are wrong.”

Loomis v. Collins

As discussed above, this case presents questions related to educational assistance benefits and the validity of a regulation issued by the Department of Veterans Affairs.

In its informal response brief, the government explained that, “when read together, sections 3672(b)(2)(A) and 3680A(b) provide that a flight training course approved by the FAA offered by an FAA-certified institution is constructively approved for educational assistance.” But, the government continued, “VA cannot approve educational assistance for a veteran enrolling in such a course unless the course is also part of an IHL.” With respect to Loomis’s argument that “the majority’s interpretation renders section 3672(b)(2)(A) superfluous,” the government responded by suggesting the court below had already “correctly addressed this argument when explaining the interplay between a pilot school and an IHL.” The government explained that, because “an IHL and pilot school are not mutually exclusive, it follows that Section 3672(b)(2)(A) can be read to constructively approve some courses offered by IHLs.”

Principal and Response Brief

Since our last update, one principal and response brief was filed in a case including an amicus brief.

Splunk Inc. v. Cribl, Inc.

As a reminder, Splunk’s opening brief in this case presented the following questions:

  1. “Whether the district court erred in holding that Cribl’s repeated, ongoing downloading, copying, and executing of the entire copyrighted Splunk Enterprise software to test and troubleshoot Cribl Stream were ‘fair uses’ under Section 107 of the Copyright Act, where these uses were not transformative, were overwhelmingly commercial, and caused market harm to Splunk.”
  2. “Whether the district court erred in interpreting the SGT and TAP agreements.”
  3. “Whether remand is warranted to revise the permanent injunction where the district court’s erroneous rulings on fair use and on contract interpretation tainted its injunction analysis.”
  4. “Whether the district court erred in holding at the pleadings stage that the asserted claims of U.S. Patent Nos. 9,762,443 and 10,805,438 are patent ineligible under 35 U.S.C. § 101.”

Now, in its principal and response brief, Cribl Inc. presents the following questions in its cross appeal:

  1. “Whether the district court committed reversible error in finding that any unlicensed, incidental copying of Splunk’s copyrighted object code arising from Cribl’s downloading and execution of Splunk Enterprise for purposes of testing and troubleshooting to maintain interoperability with Cribl Stream was a fair use under Section 107 of the Copyright Act.”
  2. “Whether the district court correctly interpreted provisions of the parties’ agreements to allow for the fair use of Splunk Enterprise software, including through reverse-engineering, testing, and troubleshooting.”
  3. “Whether there is any basis to remand for a new trial or revisit the scope of the injunction.”
  4. “Whether the asserted claims of U.S. Patent Nos. 9,762,443 and 10,805,438 are patent-ineligible under 35 U.S.C. § 101.”
  5. “Only to the extent this Court disturbs any copyright aspect of the judgment or injunction below, whether the district court erred in denying Cribl’s renewed motion for judgment as a matter of law as to willful copyright infringement.”

Cribl Inc. asserts the lower court’s “conclusion was well supported by the jury’s factual findings—unchallenged on appeal—that Cribl’s uses of Splunk Enterprise were transformative and had not been shown to cause Splunk any losses.” Cribl contends that Splunk’s argument “rests on a misunderstanding of the relevant Ninth Circuit precedents.”

Reply Briefs

Since our last update, three reply briefs were filed in cases including amicus briefs or appointed counsel as amicus curiae.

In re Satius Holding, Inc.

As a reminder, information on this case’s opening brief and response brief can be found earlier in this post.

In its reply brief, Satius argued the PTO’s “allegation that ‘Satius has never offered a specific claim construction . . .’ is at odds with the record.” It further emphasized how the Federal Circuit’s “precedent counsels that ‘[t]he construction that stays true to the claim language and most naturally aligns with the patent’s description of the invention will be, in the end, the correct construction.’”

VidStream LLC v. Twitter Inc.

As a reminder, Twitter’s opening brief in this case presented the following questions:

  1. “Is a patent claim directed to collecting, processing, and outputting a particular kind of video data using generic computer technology unpatentable under 35 U.S.C. § 101?”
  2. “If a jury finds one claim invalid and a near-identical second claim valid, is the second claim also invalid when it includes only a single unique limitation and it is not disputed that this single limitation is known in the prior art?”
  3. “Should a damages award be vacated where the district court states that the exclusion of an expert’s damages opinion is ‘the exception, not the rule,’ the underlying expert opinion fails to apportion and is based on documents that lack technical and economic comparability to the asserted patents, and ultimately the jury never hears any testimony about the standalone value of the lone claim it found infringed?”
  4. “Should a prejudgment interest award be vacated when the plaintiff sought a running royalty, but the district court calculated the award based on an assumption that all royalties have been paid as a lump-sum on the day the infringement began (before plaintiff owned the patent) and continued to accrue over the years the case was stayed?”

In its response brief, VidStream asserted “Twitter offered no evidence during summary judgment about technological improvements, and its contrary evidence was conclusory and drawn to individual limitations rather than the inventive combination.” It further contended that “Twitter’s argument is forfeited, and Twitter’s preferred findings from the other invalidity verdicts do not receive preferential treatment over the jury’s Claim 17 findings.”

Now, in its reply brief, Twitter asserts that “VidStream does not refute Twitter’s showing that Claim 17 fails to recite a technological advance or supply the inventive concept that 35 U.S.C. § 101 demands.” Twitter further contends “VidStream does not cross-appeal the jury’s findings that Claim 22 is invalid, and that jury finding necessarily means all of Claim 17’s shared elements are taught by the prior art.”

Loomis v. Collins

As a reminder, more information on this case can be found earlier in this post.

In his informal reply brief, Loomis offered to “immediately withdraw his appeal” if the government “presents a statute, just one, which meets the Veterans Court’s interpretation of section 3680A(b)’s exception clause.” Loomis, moreover, argued “[i]t’s inconceivable that Congress would have established an Institution of Higher Learning (IHL) requirement, amend section 3680A(b) adding an exception clause to the IHL requirement, then fail to explicitly exempt the IHL requirement in any other provision, if the Veterans Court majority’s interpretation is correct.”

Amicus Briefs

Since our last update, seven additional amicus briefs were filed in Arbutus Biopharma Corp. v. Moderna, Inc.

As discussed above, the opening brief in this case presented the following question:

  • “Whether [28 U.S.C.] § 1498 provides the exclusive remedy—a suit against the United States in the Court of Federal Claims—for Plaintiffs’ claims of (1) direct infringement and (2) indirect infringement based on the vaccine doses Moderna manufactured in performing its C-100 Contract for the Government.”

The following additional amicus briefs have now been filed:

This case has now received a total of four amicus briefs in support of Moderna Inc. and six amicus briefs in support of Arbutus Biopharma Corp.

Oral Arguments

Since our last update, one case that attracted an amicus brief and another case where the court appointed counsel as amicus curiae have been argued.

In re Satius Holding, Inc.

As discussed above, in this case Satius appeals a decision of the Patent Trial and Appeal Board in an ex parte reexamination. In the appeal, Satius presents questions related to claim construction and prosecution history disclaimer. We have posted an argument recap.

Loomis v. Collins

As discussed above, in this case Loomis appeals a decision of the Court of Appeals for Veterans Claims. The case presents questions related to educational assistance benefits and the validity of a regulation issued by the Department of Veterans Affairs. We have posted an argument recap.