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. We keep track of these cases in the “Other Cases” section of our blog. Today, with respect to these cases, we highlight one opinion in a takings case presenting questions of railroad easements; an argument recap in a taking case; two reply briefs in cases that raise questions related to anticipation and obviousness as well as infringement and injunctive relief; and two new amicus briefs in the patent case that raises questions related to infringement and injunctive relief. Finally, we highlight four upcoming oral arguments. Here are the details.
Opinion
Since our last update, a Federal Circuit panel has issued an opinion in Barron v. United States, a takings case that attracted an amicus brief. In this case, Barron appeals the dismissal of her takings claim by the Court of Federal Claims. This appeal presented questions related to railroad easements and the interpretation of condemnation decrees and deeds under Florida law. In an opinion authored by Judge Lourie and joined by Judges Stoll and Stark, the panel affirmed the judgment. We will post an opinion summary soon.
Argument Recap
Since our last update, we posted an argument recap in District of Columbia Water and Sewer Authority v. United States, which was aruged in October. In this case, the United States appeals a decision of the Court of Federal Claims, which awarded the District of Columbia Water and Sewer Authority $633,150.90 for unpaid sewer charges.
Reply Briefs
Since our last update, two reply briefs were filed in cases attracting amicus briefs.
Johns Hopkins University v. Merck Sharp & Dohme LLC
As a reminder, Johns Hopkins’ opening brief in this case presented the following questions:
- “Did the Board err by applying the JHU Inventors’ statutorily-required ClinicalTrials.gov posting as prior art where the posting was made as part of a bona fide effort by the inventors to test the hypothesis underlying their invention and to ascertain whether the invention would work as intended, and where there was no dispute as to the application of the experimental use factors?”
- “Did the Board err in its construction of ‘in response to’ by adopting an analytical framework that does not require finding an express causal relationship between determining a patient’s MSI-H status and treating the patient according to the claimed method?”
- “Did the Board err in its anticipation analysis by finding missing claim limitations, including regarding efficacy and patient characteristics, anticipated, either by explicit or inherent disclosure in the prior art?”
- “Did the Board err in its obviousness determination where it relied on inherency to supply missing claim limitations and failed to evaluate the Graham factors?”
In its non-confidential response brief, Merck argued that, “[a]s every court to address the question has agreed, the experimental-use doctrine does not negate the prior-art status of printed publications.” It further contended “JHU makes no effort to reconcile its position with the text of” a relevant statute. As to obviousness, Merck claimed the Board’s previous determination that “dependent claims directed to trivial method details would have been obvious . . . was particularly well founded given that JHU argued against all of Merck’s obviousness challenges together, without arguing that any of the limitations recited in the dependent claims rendered the claimed treatment method as a whole non-obvious.”
Now, in its reply brief, Johns Hopkins avers the posting “was experimental.” Johns Hopkins points to the fact that “Merck contested none” of the thirteen factors relevant to the experimental use analysis, “and does not dispute that it failed to do so.” It notes that the posting, anyway, “does not anticipate.”Johns Hopkins suggests the “Board’s errors share a common root: interpreting a 2013 posting as though the inventors already knew what the study was run to discover.”
Collision Communications, Inc. v. Samsung Electronics Co.
As a reminder, Collision Communications’ opening brief in this case presented the following question:
- “Whether the district court erred as a matter of law in denying Collision a permanent injunction to prohibit Samsung from continuing to infringe.”
In its response brief, Samsung argued “[i]t is blackletter law that to obtain an injunction, a plaintiff must establish that it ‘would suffer irreparable harm in the absence of injunctive relief.’” Because “Collision did not even attempt to make that showing here,” Samsung asserted “[t]he district court . . . did not abuse its discretion in denying injunctive relief.”
Now, in its reply brief, Collision Communications claims the district court erroneously “concluded that Collision had failed to show that the balance of hardships and the public interest favored an injunction, ignoring the irreparable harm to Collision and its patent rights.” Collision notes the district court’s opinion “unambiguously recognizes that Collision suffers irreparable harm from Samsung’s ‘ongoing infringement’.” Collision maintains “[t]he district court’s failure to consider that same irreparable harm in evaluating the balance of hardships and the public interest cannot stand.” Collision highlights that “Samsung advances no fewer than four purported alternative grounds for affirming the decision below,” but Collision says “each is meritless.”
Amicus Briefs
Since our last update, two additional amicus briefs were filed in Collision Communications, Inc. v. Samsung Electronics Co. As discussed above, the opening brief in this case presented the following question:
- “Whether the district court erred as a matter of law in denying Collision a permanent injunction to prohibit Samsung from continuing to infringe.”
The following additional amicus briefs have now been filed in support of affirmance:
- Brief of Amicus Curiae Public Interest Patent Law Institute in Support of Defendants-Appellees
- Corrected Brief of The Association For Competitive Technology (ACT) and Engine Advocacy as Amici Curiae in Support of Defendants-Appellees
This case has now received a total of three amicus briefs in support of Collision Communications, and seven amicus briefs in support of Samsung.
Upcoming Oral Arguments
Four cases being argued at the Federal Circuit in November attracted amicus briefs:
- Arbutus Biopharma Corp. v. Moderna, Inc.
- In re Blaze Mobile, Inc.;
- In re Blaze Mobile, Inc.; and
- Vicor Corp. v. International Trade Commission.
We will be posting argument previews for these four cases this week.