Here is an update on activity in cases pending before panels of the Federal Circuit where the case involves 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 case raising a question related to se advertising counterclaims under the Lanham Act; two new cases, one a takings case and another a patent case; and new briefing in a case raising questions related to whether a district court erred in denying a motion to intervene and to unseal court records. Here are the details.
New Opinion
Since our last update, the Federal Circuit has issued an opinion in a case that attracted an amicus brief.
Crocs, Inc. v. Effervescent, Inc.
In this case, the Federal Circuit reviewed a district court’s grant of summary judgment against a counterclaim alleging false advertising violations of Section 43(a) of the Lanham Act. In an opinion authored by Judge Reyna that was joined by Judge Cunningham and Judge Alan Albright of the Western District of Texas, who sat by designation, the Federal Circuit reversed the judgment and remanded the case. The Federal Circuit held that that the district court erred in granting summary judgment on a Lanham Act counterclaim because it “timely presented a theory under Section 43(a)(1)(B) of the Lanham Act linking Crocs’ alleged misrepresentation in a commercial advertisement to the nature, characteristics, or qualities of Crocs’ shoes.” See our opinion summary for more information.
New Cases
Since our last update, we’ve identified two cases that attracted amicus briefs.
ATS Ford Drive Investment, LLC v. United States
In this takings case, Godby Properties seeks to reverse a grant of summary judgment by the Court of Federal Claims in a takings case. First, Godby Properties argued, the lower court failed “to certify an unsettled question of Indiana state law to the Indiana Supreme Court.” It further argued the lower court erred when, after “failing to certify this question to the Indiana Supreme Court,” it “proceeded to hold that preprinted form language in ‘right-of-way and damage release’ documents signed in the 1840s and 1850s conveyed a fee simple” title to the property in question.
The United States, in its response brief, argued that, under Indiana law, “when Plaintiffs’ predecessors signed Releases conveying property for the rail line, the Company acquired those lands in fee simple; the Company and its successors have owned those lands ever since.” It further contended that two Indiana Supreme Court precedents dispose of this case because one case held that “voluntarily conveying a right of way would convey a fee simple” while the other held “that a Release—with the same granting language as the Releases here—conveyed a fee simple.” As a result of “clear controlling Indiana precedent,” the United States argued, the Federal Circuit “lacks authority to certify the question to the Indiana Supreme Court.”
In its reply brief, Godby Properties disputes the lower court’s interpretation of Indiana Supreme Court precedents, arguing that “the explicit text of the Releases and 150 years of Indiana jurisprudence and public policy all direct the Releases to be interpreted as the grant of an easement, not title to the fee estate in a strip of land.”
Restem, LLC v. Jadi Cell, LLC
In this case, Restem appeals a judgment of the Patent Trial and Appeal Board in an inter partes review proceeding that found challenged claims not unpatentable.
In its opening brief, Restem explained that “[t]he claims at issue are simply directed to an isolated cell produced by a two-step process, wherein the produced isolated cell has a specified marker pattern.” In its brief, in turn, Restem made two arguments. First, it argued, the Board reached “an improper claim construction, wherein it ‘read-in’ limitations to the claimed process steps to distinguish the Challenged Claims from the prior art.” Second, Restem argued, the Board “applied an improper standard for inherency of product-by-process claims.”
In its response brief, Jadi argued “the Board correctly concluded that ‘isolated cell’ means ‘a cell population.'” “The Board’s factual findings related to its construction,” Jadi continued, “are supported by uncontested substantial evidence.” With respect to Restem’s second argument, Jadi suggested that it “is premised on a misunderstanding of the law and incorrect characterization of the record.”
In its reply brief, Restem argued Jadi’s “attempts to explain away” the Board’s “critical errors and prop-up the Board’s decision completely miss the mark.” Restem maintained that “the isolated cells produced by the prior art are not necessarily the same as the claimed cells.”
New Briefing
Entropic Communications, LLC v. Charter Communications, Inc.
In its opening brief, the Electronic Frontier Foundation argued a district court erred in denying its motion to intervene and to unseal court records. It contended “[n]either controlling law nor the record support the district court’s conclusion that Charter and Entropic would be prejudiced by EFF’s intervention.” It maintained the district court’s denial of EFF’s motion to unseal should be reversed because “the court failed to acknowledge, much less apply, the Fifth Circuit’s law protecting public access to judicial records; it failed to conduct a document-by-document and line-by-line review of the materials before sealing them; and it never articulated specific countervailing interest that overrode the public’s right of access.” Finally, it rejected the district courts interpretation of a local rule as justification for its sealing practices, arguing it “conflict[s] with Fifth Circuit law protecting the public’s right of access.”
In its response brief, Charter Communications argues that, because “the motion to intervene was filed after the case was dismissed, EFF is not harmed by the district court’s denial of its motion to intervene and unseal records. Charter Communications points out the magistrate judge’s Report and Recommendation “is entirely unredacted and summarizes key issues’ for the public, and that there were no ‘unusual circumstances’ that militate in favor of a determination of timeliness.” Charter also contends the district court did not abuse its discretion because the “local rule clearly allows parties to file under seal when the district court has already granted authorization to seal confidential information designated under a protective order.”
Since our last report, the Electronic Frontier Foundation filed its reply brief. In it, EFF argues the “district court’s denial of EFF’s motion to intervene pursuant to Fed. Civ. R. P. 24(b) falls outside the bounds of its discretion.” It rejects the contention that “the district court’s decision . . . was wholly discretionary,” especially when “intervention denial is premised on erroneous statements of law or a clearly erroneous assessment of evidence,” as EFF argues occurred in this case. It then argues the district court abused its discretion in denying EFF’s motion to unseal because, in doing so, the court “ignored binding authority that precludes reliance on protective orders as a basis to seal.”