Here is an update on activity in cases pending before panels of the Federal Circuit where the cases involve 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 new opinion in a veterans case and four new cases that attracted amicus briefs: a veterans case and three patent cases. We also highlight new briefing in two patent cases as well as recent oral arguments in a trademark case and veterans case. Here are the details.
New Opinions
Since our last update, the Federal Circuit issued one new opinion in a case that attracted an amicus brief.
Frantzis v. McDonough
In this case, the Federal Circuit reviewed a determination by the Court of Veterans Claims that, under the Veterans Appeals Improvement and Modernization Act, a claimant is not entitled to an opportunity for a hearing before the Board member who ultimately decides the administrative appeal. The Federal Circuit, in an opinion authored by Chief Judge Moore that was joined by Judges Clevenger and Chen, affirmed the judgment of the Court of Veteran Claims. The Federal Circuit held that the Court of Veterans Claims properly affirmed the Board of Veterans’ Appeals because “[t]he AMA amended 38 U.S.C. § 7107(c) and removed the language that required the same judge for both the hearing and final determination.” See our opinion summary for more information.
New Cases
Since our last update, we’ve identified four new cases that attracted amicus briefs.
Metropolitan Area EMS Authority v. Secretary of Veterans Affairs
In their opening brief, the Metropolitan Area EMS Authority, the Valley Ambulance Authority, the Quaker Valley Ambulance Authority, and the Altoona Logan Township Mobile Medical Emergency Department Authority challenge a final rule of the Department of Veterans Affairs that they way will “enable VA to pay the lesser of the actual charge or the Medicare fee schedule (MFS) amount for non-contract ground and air ambulance transports.” They argue that the final rule “is ‘not in accordance with law’ or ‘in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.’” Furthermore, they contend, “[t]he final rule is not in accordance with, and exceeds, the Secretary’s authority to set reimbursement rates for ambulance transports.” They also argue “the final rule is arbitrary and capricious.”
In its response brief, the government argues the Federal Circuit “should deny the petition because petitioners forfeited all but one of their arguments.” The government contends “[n]either petitioners nor any other interested party raised the concerns petitioners articulate in their opening brief during the public comment period.” Even if the court considers the forfeited arguments, the government continues, “it should reject them on the merits” because “the Final Rule does not exceed statutory authority.” The Secretary argues that the rule is not “arbitrary and capricious” because “Congress unconditionally authorized VA to pay the CMS rates, the Court may not impose additional requirements on VA.”
In their reply brief, the petitioners maintain they “have not forfeited their right to judicial review” and that the “final rule still violates the APA because it is arbitrary and capricious.”
The Ambulance Association of Pennsylvania and the South Dakota Ambulance Association filed an amicus brief in support of the petitioners and seeking vacatur and a remand.
REGENXBIO Inc. v. Sarepta Therapeutics, Inc.
In this patent case the appellants, REGENXBIO Inc and the Trustees of The University of Pennsylvania, appeal a grant of summary judgment by a district court. The appellants argue in their opening brief that, “[f]or claims directed to compositions that incorporate features based on natural products, the patent eligibility analysis focuses on whether the claimed composition is ‘markedly different’ from any natural product.” They further contend that, “[u]nder that standard, the undisputed facts demonstrate that the cultured host cells of the ’617 patent claims are markedly different from any natural product in both structure and function.” They argue that, “even though the facts were undisputed, the district court’s decision rests on unsupported and erroneous factual inferences that Sarepta invited the district court to draw in its favor.”
Three amicus briefs have also been filed in this case. The American Intellectual Property Law Association filed an amicus brief in support of neither party and reversal. The Parker Institute for Cancer Immunotherapy, The J. David Gladstone Institutes, and Dana-Farber Cancer Institute filed an amicus brief in support of appellants and reversal. Lastly, the Honorable Paul R. Michel (Ret.) also filed an amicus brief in support of appellants and reversal.
Micron Technology Inc. v. Longhorn IP LLC
In this patent case the appellants, Katana Silicon Technologies LLC and Longhorn IP, LLC, appeal from what they describe as a district court’s imposition of an eight million dollar bond on Katana, effectively precluding it from prosecuting its federal claims for patent infringement. In their opening brief, they argue that “the Idaho Act” that required imposing the bond “and bond are unconstitutional and preempted as applied.” They contend the Act is preempted because it “expressly targets federal litigation and badly distorts the balance of rights in patent cases, displacing Congress’s chosen calculus of litigation incentives and disincentives.”
In its response brief one of the appellees, the State of Idaho, contends that the “only one kind of preemption” is asserted: “the subtype of conflict preemption known as obstacle preemption.” Idaho goes on to argue that “obstacle preemption applies only when Congress has passed a specific rule to address specific circumstances and state law would interfere.” Idaho maintains, moreover, that “state-law claims ‘can survive federal preemption’ if they ‘are based on a showing of “bad faith” action in asserting infringement.’”
In their response brief the other appellees, Micron Technology, Inc., Micron Semiconductor Products, Inc., and Micron Technology Texas, LLC, argue the Federal Circuit “should dismiss this appeal” because the provision relied on by the appellants “is reserved for injunctions and injunction-like orders, but the bond here is not an injunction, and it fails the . . . test for injunction-like orders.” Micron further contends that, if the Federal Circuit “concludes it can and should exercise jurisdiction to decide merits issues now, it should affirm.”
An amicus brief was filed by North Carolina, Alaska, Arizona, Colorado, Hawai’i, Illinois, Indiana, Kansas, Louisiana, Maine, Maryland, Massachusetts, Mississippi, New Jersey, New York, Oklahoma, Oregon, South Carolina, South Dakota, Tennessee, Texas, Vermont, Virginia, Washington, Wisconsin, Wyoming, and the District of Columbia in support of the appellees and affirmance.
Apple Inc. v. International Trade Commission
In its opening brief in this patent case, Apple Inc, appeals from a judgment of the International Trade Commission. According to Apple, the “Commission exceeded its statutory jurisdiction by holding Masimo satisfied the domestic industry requirement’s economic and technical prongs.” Apple also contends the “Commission . . . erred by holding the five remaining (of 103 original) asserted claims not invalid.” According to Apple, the “Commission also erred in finding infringement, particularly because its ruling depended on improperly construing ordinary words like ‘over,’ ‘above,’ and ‘through.’” Lastly, Apple argues, “Masimo’s suit was barred by prosecution laches” because, “[a]fter a twelve-year delay, Masimo opportunistically acted six days after Watch Series 6 launched.”
The App Association, Chamber of Progress, NetChoice and TechNet filed an amicus brief in support of Apple and reversal.
New Briefing
Since our last update there are two cases with new briefing.
Google LLC v. Sonos, Inc.
In this patent case, Sonos, Inc. appealed a judgment of a district court, which found the patents in suit unenforceable under the doctrine of prosecution laches. Sonos argued in its opening brief that “[p]rosecution laches does not apply to Sonos’s zone-scene patents because the animating feature for that defense—an unfair timewise extension beyond the period Congress prescribed—is absent here.” Furthermore, Sonus argued, even if “prosecution laches could apply here, the district court abused its discretion.” Specifically, Sonos emphasized that the district court said “Sonos ‘diligently’ prosecuted the family of zone-scene patents for 13 years.” Additionally, Sonos argued, Google “could not have been prejudiced by any prosecution delays because Sonos had patent claims covering all zone scenes (overlapping or not) long before Google’s infringing products.”
We previously reported that three amicus briefs were filed in this case. A first amicus brief was filed by the American Intellectual Property Law Association in support of neither party and in favor of reversal of the prosecution laches holding. A second amicus brief was filed by the Alliance of U.S. Startups & Inventors for Jobs (“USIJ”) in support of the appellant and reversal. A third amicus brief was filed by the George Washington University Law School Intellectual Property and Technology Law Clinic in support of Sonos, Inc. and in favor of reversal.
Since our last report about this case, Google LLC filed its response brief. Google argues “Sonos engaged in prosecution laches because it abused the continuation process at Google’s expense,” that “[t]he doctrine is not limited to pre-1995 patents, and it does not require term extension.”
Also, since our last report about this case, two amicus briefs were filed in support of Google. First, the National Retail Federation filed an amicus brief in support of Google and affirmance. Second, the Public Interest Patent Law Institute also filed an amicus brief in support of Google and affirmance.
Lynk Labs, Inc. v. Samsung Electronics Co.
In this patent case, Lynk Labs appealed a judgment of the Patent Trial and Appeal Board in an inter partes review proceeding finding all challenged patent claims unpatentable. In its now corrected opening brief, Lynk Labs argued the Board made multiple “errors in this IPR, each independently requiring reversal.” First, Lynk Labs argued the “Board erroneously construed” claim terms of the patent by failing “to apply the ordinary meaning of the claim language and fail[ing] to consider other claims providing clear guidance.” Further, Lynk Labs argued, the “Board legally erred by holding a secret abandoned U.S. patent application, that published only after the challenged patent’s priority date, can be applied as prior art in an IPR.”
This case attracted an amicus brief from VLSI Technology in support of Lynk Labs and reversal.
We previously reported that the Director of the United States Patent and Trademark Office filed a Brief for Intervenor. The Director argues that, by statute, a published patent application is a “printed publication.” Furthermore, the Director argues, Lynk Labs’s reading of the statute “would lead to anomalous results” and, as a result, its argument lacks merit.
Since our last report, three amicus briefs were filed. First, the High Tech inventors Alliance and the Computer & Communications Industry Association filed an amicus brief in support of Samsung and affirmance. Second, Intel Corporation filed an amicus brief in support of Samsung and affirmance. Third, the Public Interest Patent Law Institute also filed an amicus brief in support of Samsung and affirmance.
Argument Recaps
This month, the Federal Circuit heard oral argument in two cases that attracted amicus briefs.
Bureau National Interprofessionnel Du Cognac v. Cologne & Cognac Entertainment
The Federal Circuit heard oral argument in Bureau National Interprofessionnel Du Cognac v. Cologne & Cognac Entertainment, a trademark case that attracted an amicus brief. In this case, the Federal Circuit is reviewing a judgment of the Trademark Trial and Appeal Board. As explained by the appellants, Bureau National Interprofessionnel Du Cognac and Institut National Des Appellations D’Origine, “[i]n a two-to-one split decision, the Board held registrable a mark prominently incorporating without permission the certification mark COGNAC, holding that the mark (combining the phrase COLOGNE & COGNAC ENTERTAINMENT and a design featuring, inter alia, a bottle of COGNAC), if used for hip-hop music and production services, was not likely to cause confusion or dilution.” Judges Lourie, Clevenger, and Hughes heard the argument. For more information, check out our argument recap.
Freund v. McDonough
The Federal Circuit also heard oral argument in Freund v. McDonough, a veterans case that attracted an amicus brief. In this case, the Federal Circuit is reviewing a judgment of the Court of Appeals for Veterans Claims, which dismissed the case as moot and denied Freund’s request for class certification. Judges Dyk, Hughes, and Stoll heard the argument. For more information, check out our argument recap.