FedCircuitBlog

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

• a blog post covering how the U.S. Patent and Trademark Office is challenging the “rationale behind the Supreme Court’s decision in KSR v. Teleflex for certain technologies, specifically by advocating that claims to dosage regimens for pharmaceuticals should be almost per se obvious, particularly for such claims for which the pharmaceutical was itself patent protected”;
• another blog post highlighting how a joint letter from the Intellectual Property Owners Association and American Intellectual Property Law Association to Congress “asks that the USPTO be ‘exempted from executive actions that could further hinder its ability to meet its mission’”;
• a report discussing how the D.C. Circuit recently denied Judge Newman’s “request to unseal documents about her suspension for refusing to participate in an investigation into her fitness, saying such documents are confidential unless both the judge under investigation and the chief judge agree to release them”; and
• an editorial proposing “ways for the new Acting Director to fix the USPTO fast.”

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, one new petition was filed in a patent case raising questions related to eligibility and the Federal Circuit’s use of summary affirmances. The Court also received waivers of the right to respond in another patent case and a pro se case, as well as a brief in opposition in a trade case. Here are the details.

Here is an update on recent en banc activity at the Federal Circuit in patent cases. Petitioners filed three new petitions, one presenting a question regarding waiver of alternative grounds for affirmance, one presenting a question regarding the burden of proving non-enablement in an inter partes review proceeding, and one presenting a question regarding injunctive relief pending a mandate. Additionally, the Federal Circuit issued an invitation for a response to a petition raising a question regarding the listing of patents in the Orange Book. Finally, a response was filed to the petition raising a question regarding injunctive relief pending a mandate. Here are the details.

This week is Court Week at the Federal Circuit. The court will convene 15 panels to consider 71 cases. Of the 71 cases, the court will hear oral argument in 56 cases. The Federal Circuit provides access to live audio of these arguments via the Federal Circuit’s YouTube channel. This month, three cases scheduled for oral argument attracted amicus briefs. Here’s what you need to know about these three cases.

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

• a piece covering how “Howard Lutnick, President Donald Trump’s nominee for commerce secretary, labeled the U.S. Patent and Trademark Office’s patent application backlog ‘unacceptable’ and committed to end what he called China’s abuse of the agency” in his Senate confirmation hearing;
• a blog post discussing how the Federal Circuit recently held that the “U.S. Patent and Trademark Office’s (USPTO’s) Patent Trial and Appeal Board (PTAB) has jurisdiction over expired patents brought before it in inter partes review (IPR) proceedings”;
• an news alert discussing how the New Civil Liberties Alliance has filed an amicus brief claiming that “[t]he Federal Circuit must either permit the unlawfully suspended Judge Pauline Newman to participate in consideration of EcoFactor v. Google, or else vacate the order granting en banc rehearing in this case”; and
• an article analyzing the “top 5 most important bid protest decisions of 2024.”

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. While no new petitions were filed, the Supreme Court denied the petitions for certiorari in a veterans case and a pro se case. Here are the details.

As we highlighted yesterday, three cases being argued next month at the Federal Circuit attracted amicus briefs. One of these cases is Merck Sharp & Dohme B.V. v. Aurobindo Pharma USA, Inc., a patent case. In it, the Federal Circuit will review a district court’s determination that, when calculating a patent term extension for a reissued patent, the U.S. Patent and Trademark Office is statutorily required to base its calculation on the original patent’s issue date and not its reissue date. This is our argument preview.

Here is an update on recent en banc activity at the Federal Circuit. An opening brief was filed in a pending en banc case concerning standing to allege a violation of a statute or regulation in connection with the procurement of a government contract. Three new amicus briefs have also been filed in the other pending en banc case regarding a district court’s responsibility to scrutinize a patentee’s reliance on supposedly comparable licenses. Additionally, a new petition was filed in a Hatch-Waxman case raising a question regarding listing of patents in the Orange Book. Finally, the court denied an en banc petition raising a question concerning the lifting of an administrative injunction. Here are the highlights.

Here is an update on activity in cases pending before panels of the Federal Circuit where the case involves at least one amicus brief. We keep track of these cases in the “Other Cases” section of our blog. Today with respect to these cases we highlight a new opinion in a patent case raising a question related to what prior art may be considered during an inter partes review proceeding; four recent oral arguments in two trade and two takings cases; four new cases, including a federal personnel case, a government contract case, a trademark case, and a trade case. Here are the details.

Last week the Federal Circuit issued its opinion in Lynk Labs, Inc. v. Samsung Electronics Co., a patent case that we have been watching because it attracted four amicus briefs. In this case, the Federal Circuit reviewed an appeal from a decision of the Patent Trial and Appeal Board in an inter partes review proceeding that certain patent claims are unpatentable in light of prior art. The oral argument focused on “whether the Board erred in determining that . . . a published and later abandoned U.S. patent application . . . can be applied in an IPR as a ‘printed publication’ under 35 U.S.C. § 311(b).” That statutory subsection says that “a petitioner in an inter partes review may request to cancel as unpatentable 1 or more claims of a patent . . . only on the basis of prior art consisting of patents or printed publications.” What the appellant and one amicus brief argued is that a patent application that never issues as a patent is not a patent nor does it qualify as a printed publication when its publication date is after the effective filing date of the patent subject to the inter partes review proceeding. The Federal Circuit, however, in an opinion authored by Judge Prost and joined by Judge Lourie and Judge Stark, affirmed the Board. It found no error in the Board’s unpatentability determinations using, as the relevant date for prior art purposes, the abandoned patent application’s filing date. This is our opinion summary.