FedCircuitBlog

Here is an update on recent en banc activity at the Federal Circuit in patent cases. Since our last update, in the only pending en banc patent case, which presents a question concerning a district court’s responsibility to scrutinize a patentee’s reliance on supposedly comparable licenses, the opening en banc brief was filed, the Federal Circuit issued an order indicating parts of the opening brief went beyond the scope of en banc rehearing, and five new amicus briefs were filed. Additionally, a new petition was filed raising questions related to reliance on expert testimony in applying the doctrine of equivalents. Finally, the court denied two petitions raising questions regarding the written description requirement, obvious-type double patenting, and attorney fees. Here are the details.

Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today’s report highlights:

• a report covering how Judge “Newman is appealing her suspension and has also filed a motion to unseal documents related to an investigation which ultimately led to her being temporarily removed from the bench”;
• an article highlighting how Judge Newman “continues to fight against a suspension from the bench that was handed over to her by colleagues who believe she is ‘mentally unfit’”;
• an article describing how “[t]wo key amicus briefs were filed on Thursday, December 12, backing Judge Pauline Newman’s appeal to the U.S. Court of Appeals for the District of Columbia Circuit from the dismissal of her case against the Chief Judge of the U.S. Court of Appeals for the Federal Circuit (CAFC)”; and
• an article discussing how in a recent amicus brief “six retired judges argued” that “the Federal Circuit circumvented the US Senate and dealt a blow to the independence of all federal judges when it suspended 97-year-old Judge Pauline Newman.”

Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today’s report highlights:

• an article discussing how Judge Newman, “the nation’s oldest active federal judge, asked the D.C. Circuit to end a suspension imposed by her colleagues that prevents her from hearing cases at the Federal Circuit”;
• remarks by retired Federal Circuit Chief Judge Paul Michel on Judge Newman’s case at the D.C. Circuit;
• an article highlighting how Illinois Senator Dick Durbin and the Electronic Frontier Foundation have taken opposite sides on the PREVAIL Act; and
• an opinion piece by retired Federal Circuit Chief Judge Paul Michel suggesting “lawmakers should do everything they can to pass” the PREVAIL Act “promptly.”

Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today’s report highlights:

• an article reporting how the Supreme Court recently “rejected a bid to review decisions invalidating a patent owned by a background-check software maker that had argued that an appellate judge’s suspension had hurt its case”;
• a blog post highlighting two Supreme Court petitions the author suggests “provide [an] opportunity to address a longstanding problem with the Federal Circuit’s practice of issuing no-opinion summary affirmances in patent cases”; and 
• an article discussing the Federal Circuit’s decision “to rehear a high-profile decision that revived an artificial intelligence company’s protest over its exclusion from a $376.4 million procurement.” 

The Federal Circuit today announced that the most recent amendments to the Federal Circuit’s Rules of Practice go into effect today. The court also provided links to updated rules, forms, and guides. Here is the full text of today’s announcement.

On December 9, the Supreme Court will hear oral argument in Feliciano v. Department of Transportation, a case originally decided by the Merit Systems Protection Board. The Supreme Court granted review to consider whether “a federal civilian employee called or ordered to active duty under a provision of law during a national emergency is entitled to differential pay even if the duty is not directly connected to the national emergency.” The Federal Circuit held that, “[b]ecause Mr. Feliciano’s service does not qualify as an active duty contingency operation, as required by 5 U.S.C. § 5538(a), the Board properly denied differential pay.” This is our argument preview.

Late Friday the Federal Circuit granted a petition for en banc rehearing in Percipient.AI, Inc. v. United States, a government contract case originally decided by the Court of Federal Claims. The question presented relates to standing under 28 U.S.C. § 1491(b)(1). That statutory provision grants the Court of Federal Claims “jurisdiction to render judgment on an action by an interested party objecting . . . to a proposed award or the award of a contract or any alleged violation of statute or regulation in connection with a procurement or a proposed procurement.” The question presented is: “Who can be an interested party objecting to any alleged violation of statute or regulation in connection with a procurement or a proposed procurement under 28 U.S.C. § 1491(b)(1)?” Here is the full text of Friday’s order granting en banc rehearing. We will report more on this case later this week.

Here is an update on activity in cases pending before panels of the Federal Circuit where the case involves at least one amicus brief. We keep track of these cases in the “Other Cases” section of our blog. Today with respect to these cases we highlight two new opinions. One comes in a government contract case raising questions related to breach of contract, breach of the implied covenant of good faith and fair dealing, and recovery of certain termination-for-convenience damages. The other comes in a patent case raising questions related the propriety of an antisuit injunction. The other update is new briefing in another patent case raising questions related to whether the district court erred in granting summary judgment of patent eligibility, noninfringement, and denial of damages. Here are the details.

Here is an update on activity at the Supreme Court in cases decided by the Federal Circuit. With respect to granted cases, there is no new activity to report. With respect to petitions, two new petitions were filed. One comes in a patent case raising a question under the Administrative Procedure Act relating to inter partes review by the Patent Trial and Appeal Board. The other petition comes in a pro se case. The Court also received a new brief in opposition in a case concerning appellate procedure, an amicus brief in a patent case, and waivers of the right to respond in two other patent cases. In addition, the Court denied the petitions in three patent cases and one pro se case. Here are the details.

Here is an update on recent en banc activity in patent cases at the Federal Circuit. Highlights include new petitions in two cases raising the same question related to claim construction. Additionally, the court denied petitions for en banc rehearing in two cases raising questions about eligibility and enablement of prior art. Here are the details.