FedCircuitBlog

Guest Post by Joseph Matal and David McCombs

The Transitional Program for Covered Business Method (“CBM”) Review will come to an end on September 16, 2020, after eight years. In our view, the CBM program’s brief history is a cautionary tale about the costs that are imposed on the system when the Supreme Court delays in rectifying a mistake.

I’m pleased to announce that, this week and next, Fed Circuit Blog will host its first online symposium. This symposium will focus on the anticipated sunset of the Patent Trial and Appeal Board’s statutory directive to hold “covered business method review” proceedings—hearings to review the patentability of claims included in “covered business method patents.” The Federal Circuit, of course, hears appeals from parties dissatisfied with judgments rendered by the PTAB in these CBMR proceedings, and over the last several years the court has issued a number of opinions in this context. Here, I provide background on these proceedings and introduce some of the topics participants in our symposium will address in their guest blog posts.

The Federal Circuit and Court of Federal Claims entered a joint order today extending their prior order of June 26, which limited access to the National Courts Building, until September 14. The Federal Circuit also issued a notice with additional information related to the order. Here is text from the court’s notice.

Jeffrey A. Lefstin serves as a Professor of Law at the University of California, Hastings College of the Law. Prior to serving as a professor, he clerked for Federal Circuit Judge Raymond C. Clevenger III. Prof. Lefstin holds a Ph.D. in Biochemistry from the University of California San Francisco and a J.D. from Stanford Law School. He has written extensively and testified before Congress concerning the doctrine of patent eligibility.

Though described by the majority as “narrow,” the American Axle v. Neapco panel opinion sets forth two far-reaching expansions in the law of patent eligibility.

Paul R. Michel served as a Circuit Judge of the U.S. Court of Appeals for the Federal Circuit from 1988 to 2010, including a six year tenure as Chief Judge from 2004 to 2010. Here, he reflects on judicial treatment of patent eligibility law—from the Supreme Court’s decision in Mayo Collaborative Services v. Prometheus Laboratories, Inc. in 2012 through Friday’s set of opinions in American Axle & Manufacturing, Inc. v. Neapco Holdings LLC.

The law of patent eligibility has been a hopeless mess ever since the Mayo decision upended three decades of stable and predictable law described in Diehr in 1981.  

This morning the Federal Circuit issued an announcement reminding the public that its most recent amendments to its Rules go into effect today and apply to all cases filed or pending on or after today. Based on new provisions in the Rules, the Clerk of Court today also issued updated versions of the court’s forms, Electronic Filing Procedures, Guide for Oral Argument, and Guide for Unrepresented Parties. The Clerk also issued two notices, one establishing rates for taxation of costs and another addressing electronic filing for unrepresented parties. Here is the text of this morning’s announcement.

On Friday, the Federal Circuit and Court of Federal Claims entered a joint order modifying their prior order of March 16, which limited access to the National Courts Building complex. The Federal Circuit also issued an announcement with additional information related to the order. Here are the details.

As reported in our news post this morning, following a period of public comment, the Federal Circuit announced that it has adopted amendments to the Federal Circuit Rules of Practice and the Federal Circuit Attorney Discipline Rules. These amendments take effect July 1, 2020, and will apply to all cases filed or pending on or after July 1.

The Federal Circuit late this evening announced the closure of the National Courts Building and the cancellation of tomorrow’s previously scheduled telephonic arguments. This announcement comes on the heels of two prior announcements this week that the clerk’s office would close in the afternoon and be inaccessible for paper filings. While the court did not explain the closure, besides the ongoing coronavirus pandemic, the National Courts Building sits on Lafayette Square, the site of recent protests over police brutality. Here is the text of this evening’s announcement.

Last week, the Federal Circuit issued a Notice Concerning the Conducting and Scheduling of Oral Argument. In it, the court announced that it has suspended all in-person arguments until further notice. In addition, the court announced that cases set for argument after the June 2020 session will be argued telephonically unless otherwise notified by a separate order that oral argument is unnecessary. The court also issued an order on point.