FedCircuitBlog

Four cases that attracted amicus briefs are being argued at the Federal Circuit next week: Arrowood Indemnity Co. v. United States, Cacciapalle v. United States, Owl Creek Asia I, L.P. v. United States, Fairholme Funds, Inc. v. United States. In these cases, the plaintiffs asserted claims at the Court of Federal Claims based on government actions related to the 2008 financial crisis and ownership of shares of Fannie Mae and Freddie Mac. As explained by the Court of Federal Claims in one of the cases, the “plaintiffs seek the return of money illegally exacted, damages for breach of contract and breach of fiduciary duty, and compensation for a taking pursuant to the Fifth Amendment to the United States Constitution.” The Court of Federal Claims, however, dismissed these claims, finding it “lacks jurisdiction to entertain their fiduciary duty and implied-in-fact-contract claims, and plaintiffs lack standing to pursue any of their claims.” The plaintiffs have now appealed to the Federal Circuit, challenging the lower court’s holdings. The Federal Circuit consolidated these cases for purposes of oral argument. Here is our argument preview.

This morning the Federal Circuit issued a precedential opinion invalidating three regulations issued by the Department of Veterans Affairs as inconsistent with the text of the Veterans Appeals Improvement and Modernization Act. Here is the introduction to the opinion.

Federal Circuit Judge Kathleen O’Malley to Retire Next March – Blake Brittain reports for Reuters about how Judge O’Malley, appointed by President Obama in 2010, will retire next March.

O’Malley Retirement Leaves Fed. Cir. With No Ex-Trial Judges – Perry Cooper also reports about Judge O’Malley’s retirement on BloombergLaw.com, noting that “O’Malley is [the] court’s only former district court judge.”

Federal Circuit Nixes Appeal on Claims of Unfair Treatment by California Court in Pro Se Lawsuit Over Restrictions to Cancer Research – Steve Brachmann writes on IPWatchDog.com about the Federal Circuit’s nonprecedential decision in Siegler v. Sorrento Therapeutics, Inc.

Possible Vaccine Mandate for Federal Employees Raises Host of Tricky Questions, Attorneys Say – In an article on FederalNewsNetwork.com, Nicole Ogrysko writes about a 2002 Federal Circuit case, Mazares v. Department of the Navy, and how it may impact mandatory COVID-19 vaccines for the federal work force.

This morning the Federal Circuit issued a nonprecedential opinion in a patent case appealed from the Patent Trial and Appeal Board and a nonprecedential opinion in an employment case appealed from an arbitration. Here are the introductions to the opinions.

Last Friday the Federal Circuit sua sponte vacated its June 30, 2021 panel decision in Taylor v. McDonough, a veterans case asking whether a veteran was entitled to an earlier effective date for his benefits due to restraints on his ability to disclose his participation in “chemical agent exposure studies at the Edgewood Arsenal in Edgewood, Maryland (Edgewood Program).” The Federal Circuit also granted en banc review of the case. According to Friday’s order, the en banc court will consider whether application of the doctrine of equitable estoppel to provide the veteran with the earlier effective date violates the Constitution’s Appropriations Clause and, conversely, whether denial of the earlier effective date violates the constitutional right-of-access doctrine. Here are the details.

This morning the Federal Circuit issued a precedential opinion in a veterans case, reversing a decision of the United States Court of Appeals for Veterans Claims. The court also issued a nonprecedential opinion dismissing an appeal in another case appealed from the same court. Here are the introductions to the opinions.

The U.S. Court’s website reveals that Federal Circuit Judge Kathleen O’Malley plans to retire from the bench on March 11, 2022. Judge O’Malley has served as a Federal Circuit judge for over ten years and, given her past experience as a federal district judge, as a federal judge for over twenty-six years. Notably, when paired with Judge Wallach’s taking senior status this past May, Judge O’Malley’s retirement may mean that the Federal Circuit will not have any active judge with prior experience as a trial judge. That said, coming on the heels of Tiffany Cunningham’s confirmation vote last week, Judge O’Malley’s retirement will provide President Biden with his second opportunity to appoint a judge to the Federal Circuit, and perhaps President Biden will seek an experienced district judge to fill Judge O’Malley’s position.

Here is an update on recent en banc activity at the Federal Circuit in patent cases. The court did not receive any new en banc filings last week. The court did, however, issue denials in parallel patent cases concerning competitor standing. Here are the details.

This morning the Federal Circuit issued a precedential opinion in a patent case, in which the court vacated and remanded final written decisions in six inter partes review proceedings appealed from the U.S. Patent and Trademark Office. Here is the introduction to the opinion.

Senate Confirms Tiffany P. Cunningham, First Black Circuit Court Judge to the U.S. Court of Appeals for the Federal Circuit – On BlackEnterprise.com, Andrea Blackstone reports on Tiffany Cunningham’s Senate confirmation and classifies it as a “historic moment . . . in the America judicial system.”

Thoughts on Tiffany Cunningham’s Confirmation to the CAFC – Eileen McDermott reports on what Tiffany Cunningham’s appointment “might mean for the [Federal Circuit] long term.”

They Patented a Better SandBox — Obviousness IPRs – Dennis Crouch reports the Federal Circuit decision in Oren Tech v. Proppant Express, where the court rejected “a PTAB IPR decision because the precise obviousness argument regarding a functional limitation was not expressly stated. . . [and has] another go-round with the PTAB failing to consider commercial success.”

Fed Circ Revives Chemours Polymer Patents, Reverses PTAB Ruling – On Reuters.com, Blake Brittain reports on Chemours Company FC LLC v. Daikin Industries Ltd., where “Daikin challenged patent validity based on earlier invention.”