Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today’s report highlights recent news about the government’s plan to seek en banc review of the Federal Circuit’s decision in Arthrex, the government’s lack of filing an amicus brief at the Supreme Court in Athena v. Mayo, and the Federal Circuit’s recent denial of en banc rehearing in Enzo Life Sciences, Inc. v. Becton, Dickinson and Company.
The Federal Circuit’s decision in Arthrex—holding that the appointment of Administrative Patent Judges violated the constitution—continues to generate news reports. As one example, Bloomberg recently reported that “[a]ttorneys for the Trump administration have said in court documents that the government will seek en banc review of Arthrex, and some practitioners see the case heading to the Supreme Court.”
Mark McCarty at BioWorld has noted that the Solicitor General has not filed an amicus brief in Athena v. Mayo, “an omission that would seem to take some of the pressure off the Supreme Court to hear the case.” The government may of course simply be waiting for a request from the Supreme Court to file a brief disclosing its view of the case, which addresses application of the patent eligibility requirement in the context of life sciences technologies.
Dani Kass has written an article for Law360 on the Federal Circuit’s recent denial of the petition for en banc rehearing in Enzo Life Sciences, Inc. v. Becton, Dickinson and Company. As explained by Kass, “[t]he full Federal Circuit on Wednesday said it wouldn’t review whether it is a violation of the Fifth Amendment for Enzo Life Sciences patents issued before the enactment of the America Invents Act to be subjected inter partes reviews.”