FedCircuitBlog

Guest Post by Blair E. Thompson

In 2020, the Federal Circuit addressed important questions regarding “pro-claimant” policies and rules governing the Department of Veterans Affairs. The court also approved VA’s interpretation of its regulation regarding discharges due to “willful and persistent misconduct” and paved the way for challenges to VA’s internal adjudication policies and procedures manual.

This morning, the Federal Circuit issued a precedential opinion in a Tucker Act case, a nonprecedential opinion in a patent case appealed from the Patent Trial and Appeal Board, and a nonprecedential order dismissing a petition for a writ of mandamus related to two district court cases involving contract disputes. Here are the introductions to the opinions and text from the order.

Guest Post by James M. Eisenmann

In a series of precedential decisions in 2020 (and early 2021), the Federal Circuit limited the impact of the Department of Veterans Affairs Accountability and Whistleblower Protection Act — holding that U.S. Merit Systems Protection Board (MSPB) still may review the reasonableness of imposed penalties and that Veterans Affairs (VA) may not use 38 U.S.C. § 714 to remove employees for conduct or performance that occurred prior to the enactment of the Act. See, Sayers v. Dep’t of Veterans Affairs, 954 F.3d 1370 (Fed. Cir. 2020); Harrington v. Dep’t of Veterans Affairs, 981 F.3d 1356 (Fed. Cir. 2020); and Brenner v. Dep’t of Veterans Affairs, No. 19-2032 (Fed. Cir. March 9, 2021).

The second and final case being argued next week at the Federal Circuit that attracted amicus briefs is New Vision Gaming & Development, Inc. v. SG Gaming, Inc. In this patent case, New Vision appeals two decisions by the Patent Trial and Appeal Board in covered business method reviews. New Vision contends the overall structure of post-grant review proceedings under the America Invents Act “creates impermissible incentives for the PTAB, its leadership, and the individual administrative patent judges (‘APJs’)” and that such temptation violates the Due Process Clause of the Constitution. It also argues that the PTAB “abdicated its obligation to exercise its discretionary authority in the face of [a] contractual obligation to not bring a PTAB challenge,” and that the APJs were unconstitutionally appointed. It also maintains that the PTAB erred in finding ineligibility. This is our argument preview.

The Federal Circuit did not publish any opinions or orders this morning on its website.

Guest Post by Gregory C. Sisk

In this blog post, I discuss Court of Federal Claims/Tucker Act decisions by the Federal Circuit on (1) the requirement of a money-mandating statute for statutory-based money claims, (2) whether a money-mandating requirement applies as well to claims to recover illegal exactions, (3) the special case of a breach of trust claim under the Indian Tucker Act, and (4) the continued availability of a Tucker Act taking claim even when a claim could alternatively be framed in tort. These 2020 Federal Circuit decisions affirmed the continued stability of Court of Federal Claims jurisdiction through careful application and welcome clarification and extension of established and common-sense Tucker Act doctrines.

Guest post by Mark Lemley[1]& Tyler Robbins[2]

This blog post provides a brief summary of four of the most significant patent cases decided by the Federal Circuit last year. It covers cases concerning assignor estoppel, transfer, venue, and the application of the Appointments Clause of the U.S. Constitution to administrative patent judges.

This morning, the Federal Circuit issued a precedential opinion in a trade case affirming a judgment of the U.S. Court of International Trade, which had affirmed a determination of the U.S. Department of Commerce to impose a duty on imports of certain steel concrete reinforcement bar from the Republic of Turkey. Here is the introduction to the opinion.

This morning the White House announced that President Biden intends to nominate Tiffany P. Cunningham, a partner at the law firm of Perkins Coie LLP in Chicago, to serve as a Circuit Judge on the Federal Circuit. In the announcement, the White House highlighted that Cunningham is a registered patent attorney who clerked for Judge Dyk from 2001 to 2002. Her law firm bio also highlights that she holds a degree in chemical engineering from MIT along with her law degree from Harvard Law School. If confirmed, she will be the first African American to serve as a judge on the Federal Circuit. Here is the relevant text of today’s announcement.

Guest Post by Kristen Osenga

In any given year, the Federal Circuit covers a wide spectrum of issues in patent law, and 2020 was no different. Of course, a lot about 2020 was different — including seeing the Court hold (and now livestream) telephonic arguments — but most of the patent cases decided were similar in type to other years . . . a little patent-eligible subject matter, a little jurisdiction and venue, a case about infringement of standard essential patents, and a bit of deciding what the Patent Trial and Appeal Board can and cannot do. There were no real blockbuster cases in 2020 (other than maybe the Arthrex denial of rehearing, more on that later). This could be due to the pandemic, or maybe it is a sign that patent law is settling in for a bit. Of course, that does not mean the law has settled in the right place, but that is a different issue for a different day.

For today, a few cases are worth highlighting from the Federal Circuit’s 2020 patent opinions. To be clear, this is not an exhaustive review, but rather simply a short selection noting some of the more important patent cases decided last year.