FedCircuitBlog

Here is an update on recent en banc activity at the Federal Circuit in patent cases. Highlights include two new petitions, three new responses to petitions, one request from the Federal Circuit for a response, and one denial of a petition. As a reminder, pending and recently-decided petitions and related documents may be found on our En Banc Petitions page.

This morning the Federal Circuit issued one nonprecedential Rule 36 judgment.

Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today’s report includes a New York Times article highlighting the Federal Circuit’s holding last Thursday that the appointment of the Patent Trial and Appeal Board’s judges is unconstitutional, a comment by the Brookings Institution on the Moda Health Plan, Inc. v. United States case pending before the Supreme Court, and a report by Bloomberg News on the Federal Circuit’s affirming of a trial court decision tossing a $2.5 billion verdict against Gilead Sciences Inc. in a patent case.

Today the Federal Circuit issued one precedential opinion in a patent case and one precedential modified and reissued opinion in case challenging the amount of a grant awarded by the Department of the Treasury. Related to the second opinion, the court also issued two nonprecedential orders granting panel rehearing for the limited purpose of substituting the revised opinion for the previously issued opinion. Here are the introductions to the opinions and orders.

This week the Federal Circuit will hold 15 panel hearings and hear oral arguments in about 54 cases. One notable case being argued is Network-1 Technologies, Inc. v. Hewlett-Packard Company. It is the only case with an amicus brief being argued this month. As we previously reported, another case with an amicus brief that had been scheduled for oral argument this week—Power Integrations, Inc. v. Fairchild Semiconductor International—settled.

Late on Friday the Federal Circuit issued two precedential orders in patent cases and one nonprecedential order in a patent case. These orders represent the immediate fall out from the Federal Circuit’s opinion late on Thursday in Arthrex, Inc. v. Smith & Nephew, Inc. that the Secretary of Commerce’s appointment of Administrative Patent Judges to the Patent Trial and Appeal Board violates the Appointments Clause of the U.S. Constitution. (You can find this blog’s report on that decision here.) On Friday, the Federal Circuit ruled in two cases that the appellants forfeited this same challenge by not raising it in their opening briefs, but instead only in a post-briefing motion or notice of supplemental authority. In the third case, the court canceled this week’s oral argument, vacated the PTAB’s decision, and remanded the case because the appellant did raise the Appointments Clause challenge in its opening brief. Here is the text of the orders.

Today the Federal Circuit issued one nonprecedential opinion in a patent case. Here is the introduction to the opinion.

Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today’s report highlights a comment on upcoming oral arguments over whether PTAB judges are inferior or superior officers, news about South Carolina’s opening brief in their fight with the U.S. government over fines for storage of plutonium in the state, and a note on the U.S. Army urging the Federal Circuit to uphold a contracting board’s decision sparing the Army from paying $48 million for military escort delays.

While the Federal Circuit did not issue any opinions this morning, this afternoon (after the time the court typically issues opinions) it issued an important precedential opinion in a patent case, Arthrex, Inc. v. Smith & Nephew, Inc. In this case Arthrex argued that the the Secretary of Commerce’s appointment of Administrative Patent Judges to the Patent Trial and Appeal Board violates the Appointments Clause of the U.S. Constitution. The Federal Circuit agreed. The court, however, also noted the limited nature of its holding and the limited remedy its holding required.

The Federal Circuit did not issue any opinions this morning.