FedCircuitBlog

Update (April 21, 2021 at 3:30 pm):

The Federal Circuit issued a revised announcement changing only the date of Judge Moore’s succession, from May 21 to May 22.

Original Post:

This afternoon the Federal Circuit announced that one month from today, on May 21, 2021, Judge Moore will succeed Judge Prost as the Chief Judge of the Federal Circuit. The court highlighted that Judge Prost will continue to serve the court as an active judge following the conclusion of her term as Chief Judge. Notably, Judge Prost has served as the court’s Chief Judge since May 31, 2014, and so she will step down from her position as Chief Judge ten days short of the full seven-year term allowed by statute. Here is the text of today’s announcement, which includes a link to a more full description of the transition.

On Wednesday, the Supreme Court will hear oral arguments in Minerva Surgical, Inc. v. Hologic, Inc., the case that is predicted to determine the fate of the assignor estoppel doctrine. Specifically, the question presented to the Court is: “whether a defendant in a patent infringement action who assigned the patent, or is in privity with an assignor of the patent, may have a defense of invalidity heard on the merits.” This is our argument preview.

This morning the Supreme Court reversed the Federal Circuit’s finding of copyright fair use in Google LLC v. Oracle America, Inc. Justice Breyer authored the Court’s majority opinion, which Chief Justice Roberts and Justices Sotomayor, Kagan, Kavanaugh, and Gorsuch joined. Justice Thomas authored a dissenting opinion, which Justice Alito joined. Justice Barrett did not participate in the case. Here are the introductions to the majority and dissenting opinions.

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 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.

Guest Post by Devin S. Sikes

For the international trade bar, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) remains as important as ever because it so often has the final say on issues arising under U.S. international trade law. In 2020, the Federal Circuit issued thirty opinions in appeals from the U.S. Court of International Trade (CIT).[1] The Federal Circuit deemed nineteen of those thirty opinions worthy of “precedential” status.[2] To be sure, each of those nineteen precedential opinions addressed important antidumping, countervailing duty, and customs questions. Even the Federal Circuit’s non-precedential opinion in American Institute for International Steel v. United States concerned a significant issue: whether Section 232 of the Trade Expansion Act of 1962 (Section 232), which President Trump invoked more often than any of his predecessors, unconstitutionally delegates legislative authority to the President. Nevertheless, the Federal Circuit’s en banc decision in Sunpreme Inc. v. United States stands head-and-shoulders above the rest in terms of its importance and potential impact.

I’m excited to announce that this week FedCircuitBlog will host its second online symposium. The symposium will be a Year in Review, reviewing the work of the Federal Circuit in 2020 in various areas of the court’s jurisdiction: appeals involving international trade, patents, money damages claims against the federal government, federal employment law, and veterans’ benefits. We will welcome guest blog posts from leading professors and practitioners in these subject matter areas. Here, however, I first provide a brief overview of the court’s activity this past year–a year markedly different as a result of the COVID-19 pandemic, but a year in which the court continued its work hearing appeals and deciding cases in the areas of its jurisdiction.

According to the U.S. Courts website and as just announced by the Federal Circuit itself, Federal Circuit Judge Evan J. Wallach will take senior status at the end of May, ending a nine-and-a-half year stint on the court. Notably, this will represent the court’s first judicial vacancy in six years, a relatively long span dating back prior to the Trump administration. Judge Wallach’s transition to senior status potentially provides the first of several vacancies for President Biden to fill. The Senate Judiciary Committee, now chaired by Senator Durbin, will likely play an important role in the selection and confirmation of Judge Wallach’s successor. For today, however, we highlight Judge Wallach’s service to the United States both prior to and after his appointment to the Federal Circuit.