FedCircuitBlog

Here is an update on recent en banc activity in patent cases at the Federal Circuit. Highlights include new petitions in two cases raising the same question related to claim construction. Additionally, the court denied petitions for en banc rehearing in two cases raising questions about eligibility and enablement of prior art. Here are the details.

Following the court’s September announcement of proposed amendments to the Federal Circuit Rules of Practice, today the Federal Circuit announced that the court “adopted amendments to Federal Circuit Rules of Practice 21, 27, 30, 32, 35, and 40; Practice Notes to Rules 15, 28, 30, 35 and 40; and Federal Circuit Attorney Discipline Rules Introduction and Rule 5.” As we discussed in September, among other things the court is adding a practice note highlighting how it “prefers that reply briefs respond to the response brief rather than repeating what is in the principal brief” and “favors reply briefs that do not use the full word length when not necessary.” It also is adding a new requirement regarding the table of contents for appendices, requiring the table of contents to identify how the relevant document was designated in the reviewing tribunal (such as the docket or other record number). Here is the full text of today’s announcement with links to, among other things, a summary of the adopted amendments.

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

• an article discussing last week’s Senate markup hearing where lawmakers announced that they plan to “delay consideration of both the Patent Eligibility Restoration Act (PERA) and the Promoting and Respecting Economically Vital American Innovation Leadership Act (PREVAIL Act)”;
• an article reporting how U.S. Patent and Trademark Office Director Kathi Vidal announced that “she will leave the office in mid-December ahead of the incoming administration of Republican President-Elect Donald Trump”;
• a blog post highlighting an upcoming en banc review by the Federal Circuit that will “address fundamental questions about the reliability standards for expert damages testimony in patent cases”; and
• an article examining the law surrounding patent marking after a recent Federal Circuit decision “seemingly revived a private actor’s right to bring a cause of action for false marking via the unfair competition and false advertising provisions of Section 43(a) of the Lanham Act.”

Last week, the Supreme Court heard oral argument in Bufkin v. McDonough, a veterans case. In it, the Supreme Court is considering whether the Court of Appeals for Veterans Claims must “ensure that the benefit-of-the-doubt rule was properly applied during the claims process in order to satisfy 38 U.S.C. § 7261(b)(1),” which directs that court to “take due account” of the application of that rule. This is our argument recap.

Next Wednesday, the Supreme Court will hear oral argument in Bufkin v. McDonough, a veterans case decided by the Federal Circuit. The Supreme Court granted review to consider whether the Court of Appeals for Veterans Claims must “ensure that the benefit-of-the-doubt rule was properly applied during the claims process in order to satisfy 38 U.S.C. § 7261(b)(1),” which directs that court to “take due account” of the application of that rule. This is our argument preview.

This morning the Federal Circuit granted a petition for en banc rehearing filed by Google in EcoFactor, Inc. v. Google LLC, a patent case appealed after a jury trial in the Western District of Texas. Google asked the court to consider whether the 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.” Here are the details.

This morning the Federal Circuit announced that it received a lunar sample from NASA collected by Astronaut Alan B. Shepard Jr, the first American in space in 1961. The announcement states that “this fragment, along with other space memorabilia, are on loan to the Federal Circuit from NASA and will soon be on display in the National Courts Building as part of its new Center for Innovation & Law opening in early 2025.” The Center for Innovation & Law is a major initiative of Chief Judge Moore. It will display the moon rock to highlight how portions of the National Courts Building complex served as the original headquarters of NASA. Here is the full text of today’s announcement.

This morning the Federal Circuit announced the court has updated its calendar of sessions for October 2024 through September 2025. Notably, the court will hear arguments six days in each of the sessions held in December through May. The court also released its calendar of sessions for October 2025 through September 2026, and none of these months include more than five days for oral arguments. Here is the text of today’s announcement with a link to the calendars.

Friday the Federal Circuit announced that it released new materials related to its investigation of Judge Newman. The materials include an order unanimously adopting a report and recommendation of the Special Committee of the Federal Circuit Judicial Council. Most notably, the order states that “Judge Newman shall not be permitted to hear or participate in any cases, at the panel or en banc level, for a period of one year beginning with the issuance of this Order, subject to consideration of renewal if Judge Newman’s refusal to cooperate continues after that time and to consideration of modification or rescission if justified by an end of the refusal to cooperate.” Here is the full text of Friday’s announcement with links to the released material.

This morning the Federal Circuit announced that it has released materials in its investigation related to Judge Newman. Most notably, the materials include a report and recommendation of the special committee unanimously recommending “a further one-year sanction during which Judge Newman will not be permitted to hear cases at the panel or en banc level, subject to renewal if the refusal to cooperate found here continues after that time and subject to modification or rescission if Judge Newman alters her conduct and begins to cooperate with the Committee.” Here is the full text of today’s announcement with links to the released material.