For the second day in a row the Federal Circuit did not publish any new opinions or orders.
On Friday the Federal Circuit issued an order denying a petition for a writ of mandamus in In re Google, a case we have been following because it attracted amicus briefs. In the order, the court denied the petition because, it found, Google did not meet its heavy burden. Moreover, the court indicated that Google may obtain meaningful review after a final judgment is issued in its pending case. Here is a summary of the case and the order.
Stay jurisprudence from the Federal Circuit is a legacy of the Transitional Program for Covered Business Method (“CBM”) Review. Prior to the America Invents Act (AIA), the Federal Circuit rarely heard appeals related to stay motions because of the final-judgment rule. However, under the CBM statute, a party to a CBM review was allowed to take an immediate interlocutory appeal from a district court’s decision regarding whether to stay an infringement case pending a CBM review. The CBM statute was intended to increase the predictability of context-dependent stay decisions and to increase the grant rate of CBM-related stay motions. At the sunset of the eight-year CBM program on September 16, 2020, we reflect on the CBM stay jurisprudence developed around this statute.
Here is an update on recent en banc activity at the Federal Circuit. In one of the two cases in which the court has granted en banc hearings, the National Organization of Veterans Advocates filed a reply brief. In cases with pending petitions for en banc consideration, highlights include responses to two petitions raising issues related to patent eligibility and inventorship, and a voluntary withdrawal of a petition related to venue.
Online Symposium: The CBM Program Should Expire This Week as Provided by Law—Effective Alternatives for Robust Administrative Reviews of Issued Patents Remain
Guest post by Ron D. Katznelson, Ph.D.
The Transitional Program for Covered Business Method Patent Review (CBMR) was enacted in § 18 of the America Invents Act (AIA) for reviewing issued Covered Business Method (CBM) patents – patents that claim “a method or corresponding apparatus for performing data processing or other operations used in the practice, administration, or management of a financial product or service.” The AIA also set a sunset expiration date for CBMR on September 16, 2020. For the reasons explained below, CBMR should expire this week as intended and enacted in the AIA. As further explained below, those who wish to challenge CBM patents after that date, can effectively do so using any of the three alternative administrative proceedings at the US Patent & Trademark Office (PTO) that remain available with no sunset expiration, or by federal court action.
This morning the Federal Circuit issued one precedential opinion in an appeal from an arbitrator’s decision in an employment case, one nonprecedential opinion in a patent case, and one nonprecedential order granting a petition for a writ of mandamus. Here are the introductions to the opinions and the text from the order.