FedCircuitBlog

This morning, the Federal Circuit granted LKQ Corporation’s petition for rehearing en banc in LKQ Corporation v. GM Global Technology Operations LLC, a design patent case addressing obviousness. In its petition, LKQ asked the en banc court to review two questions related to obviousness in the context of design patents. In its order granting en banc rehearing,the Federal Circuit ordered the parties to address several related questions in supplemental briefs. Here are the details.

Monday, the Supreme Court granted the petition for certiorari in Rudisill v. McDonough, a veterans case decided by the Federal Circuit. The Supreme Court will review whether “a veteran who has served two separate and distinct periods of qualifying service under the Montgomery GI Bill, . . .  and under the Post-9/11 GI Bill, . . . is entitled to receive a total of 48 months of education benefits as between both programs, without first exhausting the Montgomery benefit in order to obtain the more generous Post-9/11 benefit.” Here are the details.

Late yesterday, the Federal Circuit announced the public release of additional prior orders and letters in the ongoing investigation into Judge Newman’s fitness to serve as a judge. Notably, the orders continue to prohibit Judge Newman from being assigned to new panels of cases, and one order indicates the Committee conducting the investigation “will focus on the question whether Judge Newman’s refusal to cooperate with the Committee’s investigation constitutes misconduct.” To that end, the Committee also set a deadline of July 5 for Judge Newman to submit “a brief limited to addressing the question whether Judge Newman’s refusal to undergo examinations, to provide medical records, and to sit for an interview with the Committee as described in the May 16 Order constitute misconduct and the appropriate remedy if the Committee were to make a finding of misconduct.” The Committee also indicated it will hear oral argument on the matter on July 13 in a closed-door hearing. Here is the full text of the announcement, with links to the orders.

Today, the Supreme Court granted the petition for certiorari in Vidal v. Elster, a trademark case decided by the Federal Circuit. The Supreme Court will review whether the U.S. Patent and Trademark Office’s “refusal to register a mark under Section 1052(c) [of the Lanham Act] violates the Free Speech Clause of the First Amendment when the mark contains criticism of a government official or public figure.” Here are the details.

This morning, the Supreme Court issued its opinion in Amgen Inc. v. Sanofi, Aventisub LLC, a patent case that presented the Court with the opportunity to decide “whether 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.’” In a unanimous decision, the Court affirmed the Federal Circuit’s judgment of invalidity and found a patent “specification must enable the full scope of the invention as defined by its claims.” Justice Gorsuch authored the Court’s opinion. This is our opinion summary.

Late yesterday, the Federal Circuit announced the public release of all prior orders and responses in the ongoing proceeding challenging Judge Newman’s fitness to serve as a judge on the court. Here is the full text of the notice, which includes links to the underlying documents.

As we reported this earlier this morning, news reports have circulated in the last 36-hours about Chief Judge Moore having concern with Judge Newman’s ability to serve as an active judge on the Federal Circuit. In response, the Federal Circuit just issued a Statement of the Judicial Council of the Federal Circuit. This statement addresses these reports and confirms that a proceeding under the Judicial Conduct and Disability Act has been initiated. Along with the statement, the Judicial Council notably unsealed two orders issued by the Council to provide transparency with respect to the ongoing proceeding. Here is the full text of today’s statement with links to the relevant orders.

Late Wednesday, IPWatchdog’s Gene Quinn reported that Chief Judge Moore has filed a document identified as a “judicial complaint” under the Judicial Conduct and Disability Act concerning Judge Newman. Quinn reports the document indicates Chief Judge Moore has “concern about Judge Newman’s overall ability to serve.” Late last night, Bloomberg Law’s Riddhi Setty and Michael Shapiro confirmed IPWatchdog’s report, noting some attorneys and legal academics commented that Chief Judge Moore’s allegations are “unprecedented.” Here are links to the two reports.

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.