FedCircuitBlog

This past Friday, the Federal Circuit issued a Notice of Proposed Amendments to the Federal Circuit Rules of Practice. The court proposes to amend eight Federal Circuit Rules of Practice and the Practice Notes to four rules. If adopted, the amendments would take effect on March 1, 2023. While there are many proposed amendments, as a highlight, proposed changes include requiring service of a paper copy of each brief and appendix on opposing counsel “unless counsel deems it unnecessary.” Friday’s notice also indicates the court “may also implement” previously proposed amendments that the court later deferred. Here is the full text of Friday’s announcement, a summary of the most recent proposed amendments, and links to the redlined copy and a clean copy of the most recent proposed amendments. Note that public comments in response to Friday’s proposed amendments must be received by the Clerk of Court on or before February 21.

Christa Laser is a professor at Cleveland State University College of Law, where she teaches intellectual property, innovation law, and other topics. Her research includes topics of patent law, federal courts, and civil procedure. She was previously a patent trial and appellate litigator at the law firms Kirkland & Ellis and WilmerHale. In the following guest blog post, she discusses her recently published article, Rethinking Patent Law’s Exclusive Appellate Jurisdiction. In this article, she proposes radical changes to the Federal Circuit’s jurisdiction: retaining the Federal Circuit for some appeals but, notably, returning appeals from district courts in patent cases back to the regional circuits. She also urges adoption of the Hruska Commission’s National Court of Appeals, sitting between the Supreme Court and regional circuits.

The Federal Circuit today announced that its updated Rules of Practice are now available. Today’s announcement is consistent with the court’s previous announcement about its decision to defer adoption of certain amendments. Here is the full text of today’s announcement.

We previously reported that the Federal Circuit proposed to amend several Federal Circuit Rules of Practice and the Practice Notes to three rules, which would take effect on December 1, 2022, if adopted. After receiving public comments, however, the Federal Circuit today announced that it has decided to defer adoption of the proposed amendments until a later date. Here is the full text of today’s announcement.

Today the Supreme Court granted the petition for certiorari in Amgen Inc. v. Sanofi, Aventisub LLC, a patent case raising questions related to the enablement requirement. Although the petitioner requested review of two distinct questions, the Court granted review only for the second question presented. That question asks “[w]hether enablement is governed by the statutory requirement that the specification teach those skilled in the art to ‘make and use’ the claimed invention, 35 U.S.C. § 112, or whether it must instead enable those skilled in the art ‘to reach the full scope of claimed embodiments’ without undue experimentation—i.e., to cumulatively identify and make all or nearly all embodiments of the invention without substantial ‘time and effort.’” Notably, the Supreme Court granted review of this question despite the contrary view of the Solicitor General. Here are the details.

On Friday the Federal Circuit announced that, in addition to its regular session in  Washington, D.C., it will be sitting in Philadelphia, Pennsylvania for its November 2022 session. For arguments held at area law schools on November 1 and 2, given space limitations students attending the institutions will be given priority to attend. Arguments scheduled for November 3 in Philadelphia will be open to the general public. Audio recordings of each day’s arguments will be available on the court’s website. Here is the full text of the notice.

The Supreme Court heard oral argument last week in a veterans case, Arellano v. McDonough, to consider the following questions: 

1. “Does Irwin’s rebuttable presumption of equitable tolling apply to the one-year statutory deadline in 38 U.S.C. § 5110(b)(1) for seeking retroactive disability benefits, and, if so, has the Government rebutted that presumption?”
2. “If 38 U.S.C. § 5110(b)(1) is amenable to equitable tolling, should this case be remanded so the agency can consider the particular facts and circumstances in the first instance?”

In other words, the parties argued for and against the application of equitable estoppel to the one-year filing deadline for retroactive veterans benefits. This is our argument recap. 

Yesterday, the Federal Circuit announced that on October 13 it will hold a formal investiture ceremony for the court’s newest judge, the Honorable Leonard P. Stark. While the investiture is an invitation-only event, the court has indicated that audio will be live-streamed via the court’s YouTube channel. Here is the full text of the notice.

Last week, the Federal Circuit heard oral argument in Rudisill v. McDonough, an en banc veterans benefits case. In it, VA appeals the Court of Appeals for Veterans Claims determination that Rudisill qualified for Post-9/11 benefits under both the Montgomery and Post-9/11 GI Bills. The en banc court agreed to consider two related questions: (1) “for a veteran who qualifies for the Montgomery GI Bill and the Post-9/11 GI Bill under a separate period of qualifying service, what is the veteran’s statutory entitlement to education benefits;” and (2) “what is the relation between the 48-month entitlement in 38 U.S.C. § 3695(a), and the 36-month entitlement in § 3327(d)(2), as applied to veterans such as Mr. Rudisill with two or more periods of qualifying military service?” This is our argument recap.

This past Friday, the Federal Circuit issued a Notice of Modifications to Court Operations and New Protocols for In-Person Arguments. The court indicated that, in light of recent changes to public health guidance and conditions in the Washington, D.C. area, it will resume normal court operations and reopen the Howard T. Markey National Courts Building to the public, effective today, September 12. The court also issued Revised Protocols for In-Person Arguments starting with the October 2022 session. Notably, the court has eliminated any need to test for COVID-19 prior to oral arguments. Moreover, the court will no longer limit the number of people that may attend oral arguments. That said, the court will still require visitors to wear acceptable masks in public areas, regardless of vaccination status. The court indicated it will continue to schedule all oral arguments to be in person, but it will still entertain motions for leave to appear remotely. Here is the full text of the announcement, administrative orders, and a link to the revised protocols for in-person arguments.