Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today’s report highlights:
- an article about a path to “clarity on patent subject matter eligibility in the wake of the Supreme Court’s refusal to take up the issue”;
- an article about a challenge at the Supreme Court to a Federal Circuit panel’s decision to grant panel rehearing and issue a new decision reaching an opposite conclusion based solely on the retirement of Judge O’Malley; and
- an article about the Federal Circuit’s recent finding that the “U.S. Department of Veterans Affairs guidance excluding vets with partial knee replacements from evaluation for 100% disability benefits was arbitrary and capricious.”
Riddhi Setty authored an article for Bloomberg Law about a path to “clarity on patent subject matter eligibility in the wake of the Supreme Court’s refusal to take up the issue.” Setty reported that U.S. Patent and Trademark Office Director Kathu Vidal thinks “the question requires congressional action.” In the meantime, howver, Setty discussed how Vidal is “considering issuing guidance on computer-implemented inventions and the conditions for patentability and non-obvious subject matter more broadly.”
Eileen McDermott wrote an article for IPWatchdog reporting how “Novartis Pharmaceuticals announced . . . that it will [challenge at the Supreme Court] the U.S. Court of Appeals for the Federal Circuit’s . . . denial of its request to rehear a June decision.” The article explains how, in that June decision, a Federal Circuit panel granted panel rehearing to vacate a prior split panel decision, and in doing so the panel issued a new decision reaching the opposite outcome compared to the original panel’s decision based solely on the retirement of Judge O’Malley. The article quotes a practitioner as stating that, “[w]ithout hyperbole, this procedural insanity is literally unprecedented,” based on the contention that “the Federal Circuit is the only Court of Appeals in the country that does not have a rule that requires at least one member of the majority to vote for a panel rehearing to be ordered.”
Daniel Ducassi published an article for Law360 about the Federal Circuit’s finding that the “U.S. Department of Veterans Affairs guidance excluding vets with partial knee replacements from evaluation for 100% disability benefits was arbitrary and capricious.” Ducassi explained how VA had argued the court should disregard its own precedent on the issue since the agency “had since issued an explanatory note clarifying that [the requirement to provide 100% disability benefits] only applied to complete knee replacements.”