FedCircuitBlog

The Supreme Court heard oral argument this week in a patent case decided by the Federal Circuit, Amgen Inc. v. Sanofi, Aventisub LLC. In this case, the Court is considering “[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.’” This is our argument recap.

Yesterday, the Federal Circuit issued a notice of Limited CM/ECF Availability on Friday, April 7, 2023 through Sunday, April 9, 2023. In it, the court announced that the court’s electronic filing system (CM/ECF) will be unavailable between Friday, April 7, 2023, at 6:00 p.m. (Eastern) through Sunday, April 9, 2023, at 6:00 p.m. (Eastern). Here is the full text of the announcement.

Yesterday, the Federal Circuit issued a Notice of Adopted Amendments to the Federal Circuit Rules of Practice. In it, the court amends 18 Federal Circuit Rules of Practice. The new amendments will take effect on March 1, 2023. Here is the full text of the announcement and a summary of the amendments.

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.