Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today we highlight:
- an article examining how “[t]ech companies are embracing an unorthodox appellate procedure to challenge policy shifts expanding the US Patent and Trademark Office director’s power”;
- another article covering how advocacy groups “have thrown their support behind” a challenge to the USPTO’s retroactive application of “a decision withdrawing earlier guidance on when the Patent Trial and Appeal Board should not review patent challenges”;
- a post discussing how “certain comments” by U.S. Patent and Trademark Office Director nominee John Squires “during his Senate Judiciary Confirmation hearing . . . could reflect alignment not only with Acting Director Stewart, but with Congress’s objective when it passed the Leahy-Smith America Invents Act”;
- a blog post criticizing a recent Federal Circuit decision for offering “a concerning example of the Federal Circuit departing from well-established patent claim construction doctrine”; and
- a piece covering how “James Woodruff II, Trump’s nominee” for the Merit Systems Protection Board, saw his nomination advance out of a Senate committee “on an 8-4 vote.”
Michael Shapiro authored an article on Bloomberg Law examining how “[t]ech companies are embracing an unorthodox appellate procedure to challenge policy shifts expanding the US Patent and Trademark Office director’s power.” According to Shapiro, these tech companies have each asked the Federal Circuit “for writs of mandamus to overturn as unconstitutional the discretionary denials of their challenges at the Patent Trial and Appeal Board.” Shapiro noted how these actions “escalate a long-running fight over the role of the PTAB,” highlighting how “[m]ultiple patent lawyers said they expect more mandamus actions to follow until the Federal Circuit either blesses or repudiates the PTO’s new procedures.”
Adam Lidgett wrote another article for Law360 covering how advocacy groups “have thrown their support behind” a challenge to the USPTO’s retroactive application of “a decision withdrawing earlier guidance on when the Patent Trial and Appeal Board should not review patent challenges.” According to Lidgett, these advocacy groups have filed amicus briefs supporting a petition that “specifically targeted acting USPTO Director Coke Morgan Stewart’s decisions undoing the PTAB’s institution of inter partes review.” Lidgett explained that the USPTO “rescinded a 2022 memo in which then-USPTO Director Kathi Vidal detailed scenarios where the board would not use its discretion to deny reviews.”
Michael Spillner published a post on IP Watchdog discussing how “certain comments” by U.S. Patent and Trademark Office Director nominee John Squires “during his Senate Judiciary Confirmation hearing . . . could reflect alignment not only with Acting Director Stewart, but with Congress’s objective when it passed the Leahy-Smith America Invents Act.” According to Spillner, Squires’s comments could indicate “a return to Congress’s original vision when it created the PTAB more than a decade ago,” when “Congress intended to encourage early patent challenges, and to discourage the use of” inter partes review.
Dennis Crouch wrote a blog post for PatentlyO criticizing a recent Federal Circuit decision for offering “a concerning example of the Federal Circuit departing from well-established patent claim construction doctrine.” According to Crouch, the court “abandoned the standard interpretation of the transitional phrase ‘consisting essentially of'” in Eye Therapies, LLC v. Slayback Pharma, LLC, which “conflicts with the court’s own . . . precedent and threatens to shift claim-transition interpretation from its traditional position as a canon of claim construction.”
Weslan Hansen penned a piece on MeriTalk covering how “James Woodruff II, Trump’s nominee” for the Merit Systems Protection Board, saw his nomination advance out of a Senate committee “on an 8-4 vote.” According to Hansen, if the full Senate confirms his nomination, “Woodruff would become the second member of the independent quasi-judicial board,” which was “left without its required two-member quorum after the Supreme Court in May upheld Trump’s firing of MSPB chair Cathy Harris.”