FedCircuitBlog

Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today we highlight:

• an article in response to “the confirmation hearing last week for John Squires” that discussed “the complex intersection between patent quality, patent examination and the Patent Trial and Appeal Board”;
• a blog post indicating that, “[i]n a number of recent opinions, the Federal Circuit decided the case on grounds that were not raised on appeal by either party”;
• a piece detailing how “Amgen Inc’s ongoing challenge to a Colorado Law regulating retail drug prices could serve as a litmus test for widespread state government efforts to keep medication costs low;” and
• a report covering how VLSI Technology LLC’s connection to Fortress Investment Group “will be at the heart of a three-day trial” next week that “could upend infringement verdicts against Intel Corp. totaling more than $3 billion.”

Late today the Federal Circuit issued an order granting an immediate administrative stay of the judgments and permanent injunctions entered by the Court of International Trade against President Trump’s Executive orders imposing various tariffs. The order indicates the stay will remain in force until the Court of International Trade itself stays the injunctions or the Federal Circuit rules on the government’s motions to stay. Notably, the order, while issued per curiam, indicates all eleven of the court’s active judges (other than Judge Newman) agreed to grant the administrative stay. Here is the full text of the order.

On May 5, the Federal Circuit issued its opinion in ATS Ford Drive Investment, LLC v. United States, a case originally decided by the Court of Federal Claims. In this takings case, the Federal Circuit reviewed questions related to rails-to-trails conversion, whether the lower court erred when it refused to certify a question to the Indiana Supreme Court and when it held that right-of-way and damage-release forms landowners signed in the 1840s and 1850s granted a railroad title to fee simple estates in a strip of land used for a railway line. Judge Cunningham authored the the Federal Circuit’s opinion, which described why the court affirmed the lower court’s judgment. Judges Stoll and Lourie joined Judge Cunningham’s opinion. This is our opinion summary.  

Last month, the Federal Circuit issued its opinion in United Water Conservation District v. United States, a case we have been following because it attracted an amicus brief. In this appeal, the Federal Circuit reviewed a dismissal of a takings claim by the Court of Federal Claims. That court held that a restriction of water rights did not constitute a physical taking but rather a regulatory taking, which presented an unripe controversy. Judge Lourie, Judge Hughes, and Judge Gilstrap (sitting by designation from the Eastern District of Texas) heard the oral argument. Judge Lourie authored a unanimous opinion for the panel affirming the judgment. This is our opinion summary.

Next month only one case scheduled for oral argument attracted an amicus brief. That case is a government contract case, Percipient.AI, Inc. v. United States. The Federal Circuit granted en banc rehearing in this case to reconsider the issue of standing to allege a violation of a statute or regulation in connection with the procurement of a government contract. This is our argument preview.

Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today we highlight:

• a blog post suggesting the Federal Circuit “established an important precedent regarding inherent disclosure and implicit claim construction” in a recent opinion issued in an appeal from an inter partes review proceeding;
• an article describing how the Federal Trade Commission is calling “on Teva, Novartis, Mylan and other drugmakers” to “remove patents from a key federal database that partially insulates their drugs from generic competition”;
• a report discussing a recent petition for en banc rehearing that argues a Federal Circuit opinion related to the domestic industry requirement for establishing jurisdiction of the International Trade Commission “overlooks the cardinal rule that statutory language must be read in context”; and
• an article discussing how “[t]welve states . . . urged a federal court to strike down President Donald Trump’s sweeping taxes on imports.”

Here is an update on recent en banc activity at the Federal Circuit in patent cases. Since our last update, the court issued an en banc opinion in a patent case. Additionally, two new en banc petitions were filed. The first raises claim construction questions and the second was filed pro se. The Federal Circuit also invited a response to a petition raising a question related to collateral estoppel, and a new response was filed in opposition to an en banc brief. One amicus brief was also filed with the Federal Circuit. Lastly, the court recently denied five petitions for en banc rehearing. Here are the details.

Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. With respect to granted petitions, as we noted last week the Supreme Court recently held held oral argument in one case decided by the Federal Circuit and issued an opinion in another. With respect to pending petitions, the Court granted two petitions, vacated the judgments, and remanded the cases in light of the Court’s holding in a case originally decided by the Merit Systems Protection Board. Also, a new petition was filed in a patent case raising a question related to the ability of a court of appeals to revive a waived argument; a brief in opposition and a reply brief were filed in another patent case raising questions related to patent eligibility and Federal Circuit Rule 36; and a brief in opposition was filed in yet another patent case raising questions concerning so-called skinny labels. Finally, the Court denied two petitions, one raising questions related to ripeness of takings claims and the other raising a question related to the on-sale bar to patentability. Here are the details.

Late last month, the Supreme Court heard oral argument in Soto v. United States, a case originally decided by the Federal Circuit. The Court granted review to consider whether a statutory provision governing Combat-Related Special Compensation, 10 U.S.C. § 1413a, provides a settlement mechanism that displaces the default procedures and limitations set forth in the Barring Act. According to the Federal Circuit, “the Barring Act applies to settlement claims” regarding Combat-Related Special Compensation. As for why, it indicated “the CRSC statute does not explicitly provide its own settlement mechanism.” It then held that “the six-year statute of limitations contained in the Barring Act applies to CRSC settlement claims.” Soto challenges these findings by arguing that the Barring Act does not apply to CRSC settlement claims. This is our argument recap.

On April 30, the Supreme Court issued its opinion in Feliciano v. Department of Transportation, a case originally decided by the Merit Systems Protection Board and then the Federal Circuit. In this case, 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.” In a 5-4 decision, the Court held that a “federal civilian employee called to active duty pursuant to ‘any other provision of law . . . during a national emergency’ is entitled to differential pay without having to prove that his service was substantively connected in some particular way to some particular emergency.” Justice Gorsuch authored the majority opinion, which was joined by Chief Justice Roberts and Justices Sotomayor, Kavanaugh, and Barrett. Justice Thomas authored a dissenting opinion, which was joined by Justices Alito, Kagan, and Jackson. Here is our summary of the Court’s opinions.