FedCircuitBlog

Here is an update on recent en banc activity at the Federal Circuit in patent cases. Since our last update, two new petitions for en banc rehearing have been filed raising questions related to eligibility and Article III standing; two amicus briefs were filed in case raising questions related to obviousness and apportionment of damages; a panel granted in part a petition for panel rehearing; and the court denied two petitions for en banc rehearing raising questions related to obviousness and another petition filed pro se. Here are the details.

Last week, the Federal Circuit heard oral argument in A.L.M. Holding Co. v. Zydex Industries Private Ltd., a patent case we have been tracking because it attracted an amicus brief. In this case, A.L.M. Holding appeals a district court’s conclusion that it lacked Article III standing. Judges Chen, Stark, and Cunningham heard the oral argument. This is our argument recap.

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’s tightening of the nexus requirement for secondary considerations of nonobviousness has become one of the most consequential doctrinal developments in patent law over the past decade”;
• an article reporting that “Big Tech companies and the lawyers who represent them are expressing disappointment that the nation’s top patent court is declining to rein in changes at the U.S. Patent and Trademark Office.”
• a blog post highlighting how a recent Federal Circuit decision “underscores the critical importance of rigorously documenting inventorship, maintaining contact with all contributors, and proactively managing inventorship determinations before patent applications are filed”; and
• an article analyzing another recent Federal Circuit decision that found an “accused device to be plainly dissimilar” to a “claimed design . . . even though lay observers might initially see close visual similarity.”

Last week the Federal Circuit heard oral argument in Ollnova Technologies Ltd. v. Ecobee Technologies ULC, a patent case we have been following because it attracted an amicus brief. In this case, the patent owner, Ollnova, appeals a denial of requested prejudgment interest, and the accused infringer, Ecobee, cross-appeals the lower court’s decisions on jury instructions and multiple issues including eligibility, infringement, damages, and marking. Judges Chen, Stark, and Cunningham heard the oral argument. This is our argument recap.

Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. In the only pending case–a patent case addressing inducement of infringement and so-called skinny-labeling–the petitioner filed its reply brief. As for pending petitions, since our last update two new petitions were filed in an Indian Tucker Act case and a pro se case; a brief in opposition was filed in a patent case; and an amicus brief was filed in a case addressing Rule 36 summary affirmances. Here are the details.

Here is an update on recent en banc activity at the Federal Circuit in patent cases. Since our last update, four new amicus briefs have been filed in a case raising a question concerning a judge’s role in determining admissibility of expert testimony under Federal Rule of Evidence 702. The court also denied a petition for en banc rehearing in a case raising questions related to eligibility. Here are the details.

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

• a piece outlining factors “behind the Patent Office head’s recent refusal to have the agency institute certain proceedings”;
• an article discussing two recent decisions that “show how parties can navigate the draconian effect of an exclusion order by pursuing the simultaneous paths of a Federal Circuit appeal and ancillary proceedings” at the International Trade Commission and before U.S. Customs & Border Protection “to adjudicate a design-around”;
• a blog post highlighting how a recent filing “shines a spotlight on a structural vulnerability in how post-grant review is functioning in practice”; and
• an article examining “the Federal Circuit’s evolving view of two key trade secrets issues: (1) whether information was readily ascertainable and therefore not a trade secret; and (2) how and when plaintiffs must sufficiently define their trade secrets.”

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

• a blog post arguing the Federal Circuit’s application of the judicial exceptions to patentability for software patents “has resembled less a coherent legal standard and more a series of freely-improvised opinions”;
• an article discussing a recent Federal Circuit decision holding that “composition of matter claims covering engineered cells containing DNA from two different organisms chemically spliced together are not patent-ineligible natural phenomena”;
• a blog post addressing how the repeal of 35 U.S.C. § 102(f) “left an open question that the patent bar has been debating for more than a decade: can incorrect inventorship still be raised as a defense in patent litigation?”; and
• a blog post exploring a recent Federal Circuit decision in which the court “couldn’t determine whether the plaintiff suffered a physical taking of its radio license” because the parties had not adequately briefed whether a federal statute created “a private property right.”

Last month, the Federal Circuit issued an order denying a petition for a writ of mandamus in In re Volkswagen Group of America, Inc., a patent case we have been following because it attracted an amicus brief. In this case, Volkswagen sought to have the Federal Circuit oder the United States Patent and Trademark Office to vacate its denial of a request for inter partes review. In the order, a panel of the court consisting of Judges Dyk, Reyna, and Hughes denied the petition. This is our summary of the order, which the panel issued per curiam.

Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. In the only pending case, a patent case addressing inducement of infringement and so-called skinny-labeling, there has been no new activity since our last update. As for pending petitions, since our last update no new petitions have been filed in cases decided by the Federal Circuit; one waiver of the right to respond to a petition was filed in a patent case addressing sanctions; and four amicus briefs were filed in another patent case addressing prosecution laches. Here are the details.