FedCircuitBlog

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 Even the Federal Circuit’s non-precedential opinion in American Institute for International Steel v. United States concerned a significant issue: whether Section 232 of the Trade Expansion Act of 1962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.

On Monday, March 1, 2021, the Supreme Court heard oral arguments in the closely-watched patent case, United States v. Arthrex. As we previewed a couple days prior to argument, two main issues were considered by the Court. First, for purposes of the Appointments Clause, whether administrative patent judges (APJs) of the Patent Trial and Appeal Board (PTAB) are principal or inferior officers. And second, if APJs are indeed principal officers, whether the Federal Circuit properly cured any Appointments Clause defect through the remedy it provided. Here are the details.

Recently, a panel of the Federal Circuit granted panel rehearing in GlaxoSmithKline LLC v. Teva Pharmaceuticals USA, Inc. In this case, Teva petitioned the en banc court to reconsider the panel’s decision that Teva induced infringement through use of a skinny label on its generic version of GlaxoSmithKline’s (GSK) drug Coreg. The panel treated the petition as requesting panel rehearing, granted the petition, and ordered a second oral argument in the case, which was held this morning. Here are the details of the case.

Late yesterday the Federal Circuit granted a petition for a writ of mandamus related to a transfer motion filed in the Western District of Texas in a patent case. Notably, the Federal Circuit found that “the district court’s handling of the transfer motion up until this point in the case has amounted to egregious delay and blatant disregard for precedent.” As a result, the Federal Circuit ordered the district court to “stay all proceedings concerning the substantive issues in the case until such time that it has issued a ruling on the transfer motion capable of providing meaningful appellate review of the reasons for its decision.” Presumably the Federal Circuit issued the order late yesterday given that the district court had scheduled a hearing on the transfer motion for this morning. But, according to yesterday’s order, the district court scheduled that hearing only after the Federal Circuit ordered the filing of a response to the petition by yesterday. Here is the text of yesterday’s order.

Today, the Federal Circuit Clerk’s Office provided a notice advising the public that, while in-person filings are now available, the court encourages the filing of paper documents through the U.S. Postal Service. Here is the text of today’s announcement.

This afternoon the Federal Circuit announced that it has adopted new procedures for the handling of what it is calling “highly sensitive documents.” The court indicated it is doing so given “recent disclosures of widespread breaches of both private sector and government computer systems.” Notably, the court indicated it will treat these documents “outside of the court’s electronic case filing system.” Moreover, it will adjust not only how it will handle documents filed in the future, but also how it will handle highly sensitive documents that already have been electronically filed both in pending and even closed cases. Here is the text of today’s announcement, which includes links to the related order and modified Electronic Filing Procedures, along with a summary.