FedCircuitBlog

Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today’s report highlights:

• a report discussing how the neurosurgeon who testified that Judge Newman is “fit to serve . . . responded to a barrage of criticisms aimed at his analysis”;
• an article covering how the Federal Circuit recently reviewed a decision of the Appeals Review Panel of the Patent and Trademark Office for the first time;
• a piece reporting how the Supreme Court recently denied “several high-profile IP petitions, including two that touch on the [Federal Circuit]’s controversial use of one-word affirmances under Rule 36”; and
• an article recounting how “[a]dministrative judges with the Patent Trial and Appeal Board should prepare themselves for layoffs, according to an email from Chief Administrative Patent Judge Scott Boalick.”

Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. With respect to granted cases, there is no new activity to report. With respect to petitions, new petitions were filed in a takings case and a pro se case. The Court also received waivers of the right to respond in five pro se cases; briefs in opposition in two patent cases; a supplemental brief in a case addressing Federal Circuit Rule 36; and two new amicus briefs in a patent case. In addition, the Court denied petitions in two patent cases and two cases addressing Rule 36. Here are the details.

Here is an update on recent en banc activity at the Federal Circuit in patent cases. Since our last update, two new petitions have been filed. One of the two new petitions raises multiple issues regarding patent ownership and a district court’s authority to prohibit parties from sharing part of a claim construction with a jury. The other new petition raises questions concerning expert testimony to prove infringement of a means plus function element, claim construction, and the reverse doctrine of equivalents. Here are the details.

Earlier this month, the Federal Circuit held an en banc session to hear oral argument in EcoFactor, Inc. v. Google LLC. In this case, the court is reviewing whether a district court erred in “failing to rigorously scrutinize a patentee’s reliance on supposedly comparable licenses,” resulting in an “artificially inflated damages award that is divorced from market realities and devoid of connection to the patent’s incremental improvement to the art.” This is our argument recap.

Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today’s report highlights:

• an article arguing that a recent decision by the Federal Circuit “may make defending patent infringement claims more challenging, time-consuming and expensive, but it also has unwittingly complicated similar patent infringement proceedings involving the same patents and their appeals”;
• a blog post suggesting that, in a recent decision related to agency deference, the Federal Circuit’s “approach to the analysis [was] wrong”;
• a piece reporting how “Commerce Secretary Howard Lutnick has decided to end all current appointments to both the Patent Public Advisory Committee (PPAC) and Trademark Public Advisory Committee (TPAC), effective immediately”; and
• an article suggesting a recent decision by the Federal Circuit “expands which intellectual property (IP) owners can seek relief before the U.S. International Trade Commission (ITC) to block the import of infringing products into the U.S.”

Earlier this month the Federal Circuit issued its opinion in AliveCor, Inc. v. Apple, Inc., a patent case that we have been following because it attracted an amicus brief. In this case, the Federal Circuit reviewed three written decisions of the Patent Trial and Appeal Board in related inter partes review proceedings. The PTAB found all claims of three patents unpatentable over certain asserted prior art. AliveCor challenged the PTAB’s findings, including by arguing that the IPR petitioner, Apple, violated its discovery obligations. The Federal Circuit, in an opinion authored by Judge Stark and joined by Judges Hughes and Linn, affirmed the PTAB’s obviousness determination and declined to address AliveCor’s discovery challenge because it failed to raise the issue at the PTAB. This is our opinion summary.

Here is an update on recent en banc activity at the Federal Circuit in patent cases. Last week the Federal Circuit heard oral argument in one of the two pending en banc cases. With respect to pending petitions, two new petitions have been filed and the court denied one petition. One of the new petitions raises a question regarding claim construction; the other new petition raises a question concerning whether an abandoned patent application that becomes publicly available only after a challenged patent’s critical date is a printed publication that can be the basis for an inter partes review proceeding. The petition that was denied raised a question regarding apportionment of damages for patent infringement. Here are the details.

Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today’s report highlights:

• an article reporting how last week in a “rare en banc” oral argument “Google LLC urged ten Federal Circuit judges to wipe out a $20 million Texas patent verdict over smart thermostats, arguing the jury shouldn’t have heard an expert witness’ description of settlements the plaintiff reached with three companies”;
• a blog post explaining how in a recent trademark opinion the Federal Circuit “clarified that terms once considered generic do not necessarily remain permanently unregistrable”;
• a piece claiming that a recent decision by the Federal Circuit “ensures that Jepson claims will never be used again”; and
• a report explaining how recently a “patent owner has told the U.S. Supreme Court that there’s momentum behind its push for scrutiny of the Federal Circuit’s one-word orders in patent cases and its challenge to courts’ summary judgment practices in such matters.”

Last week the Supreme Court issued its opinion in Bufkin v. Collins, a veterans case. In this case, the Supreme Court reviewed the Federal Circuit’s conclusion that the Veterans Court did not err by “tak[ing] due account” of the Department of Veterans Affair’s application of the benefit-of-the-doubt rule and applying a clear error standard of review for factual issues. In a decision authored by Justice Thomas, the Supreme Court affirmed the Federal Circuit’s ruling. The Court held that the Veterans Court reviews the VA’s application of the benefit-of-the-doubt rule by reviewing legal issues de novo and factual issues for clear error, and that the VA’s determination that the evidence is in approximate balance is a predominantly factual determination reviewed only for clear error. Notably, Justice Jackson dissented, joined by Justice Gorsuch. This is our opinion summary.

Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today’s report highlights:

• an article reporting how the Federal Circuit yesterday reheard a case “asking it to restrict the kinds of evidence expert witnesses can describe to juries while litigants argue over patent-infringement damages”;
• a blog post arguing a recent Federal Circuit decision “highlights a significant divergence between the evidentiary standards for proving prior art status in district court litigation versus [American Invents Act] trials”;
• a piece claiming “a considerable difference of opinion between the [Federal Circuit] and [International Trade Commission] regarding interpretation and performance of [licensing] declarations” submitted to the European Telecommunications Standards Institute;
• a report explaining how John Squires, “Goldman Sachs’ former longtime chief intellectual property counsel,” has been nominated “to serve as the next U.S. Patent and Trademark Office director.”