FedCircuitBlog

Here is an update on recent en banc activity at the Federal Circuit in patent cases. Since our last update, the court issued an en banc opinion in a patent case. Additionally, two new en banc petitions were filed. The first raises claim construction questions and the second was filed pro se. The Federal Circuit also invited a response to a petition raising a question related to collateral estoppel, and a new response was filed in opposition to an en banc brief. One amicus brief was also filed with the Federal Circuit. Lastly, the court recently denied five petitions for en banc rehearing. Here are the details.

Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. With respect to granted petitions, as we noted last week the Supreme Court recently held held oral argument in one case decided by the Federal Circuit and issued an opinion in another. With respect to pending petitions, the Court granted two petitions, vacated the judgments, and remanded the cases in light of the Court’s holding in a case originally decided by the Merit Systems Protection Board. Also, a new petition was filed in a patent case raising a question related to the ability of a court of appeals to revive a waived argument; a brief in opposition and a reply brief were filed in another patent case raising questions related to patent eligibility and Federal Circuit Rule 36; and a brief in opposition was filed in yet another patent case raising questions concerning so-called skinny labels. Finally, the Court denied two petitions, one raising questions related to ripeness of takings claims and the other raising a question related to the on-sale bar to patentability. Here are the details.

Late last month, the Supreme Court heard oral argument in Soto v. United States, a case originally decided by the Federal Circuit. The Court granted review to consider whether a statutory provision governing Combat-Related Special Compensation, 10 U.S.C. § 1413a, provides a settlement mechanism that displaces the default procedures and limitations set forth in the Barring Act. According to the Federal Circuit, “the Barring Act applies to settlement claims” regarding Combat-Related Special Compensation. As for why, it indicated “the CRSC statute does not explicitly provide its own settlement mechanism.” It then held that “the six-year statute of limitations contained in the Barring Act applies to CRSC settlement claims.” Soto challenges these findings by arguing that the Barring Act does not apply to CRSC settlement claims. This is our argument recap.

On April 30, the Supreme Court issued its opinion in Feliciano v. Department of Transportation, a case originally decided by the Merit Systems Protection Board and then the Federal Circuit. In this case, the Supreme Court granted review to consider whether “a federal civilian employee called or ordered to active duty under a provision of law during a national emergency is entitled to differential pay even if the duty is not directly connected to the national emergency.” In a 5-4 decision, the Court held that a “federal civilian employee called to active duty pursuant to ‘any other provision of law . . . during a national emergency’ is entitled to differential pay without having to prove that his service was substantively connected in some particular way to some particular emergency.” Justice Gorsuch authored the majority opinion, which was joined by Chief Justice Roberts and Justices Sotomayor, Kavanaugh, and Barrett. Justice Thomas authored a dissenting opinion, which was joined by Justices Alito, Kagan, and Jackson. Here is our summary of the Court’s opinions.

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

• an article describing how John Squires, “nominated by President Donald Trump to run the US Patent and Trademark Office,” was scheduled to appear at a confirmation hearing before the Senate Judiciary Committee on Wednesday of this week;
• a follow-up article detailing how during his confirmation hearing John Squires said the country’s patent system “is going in the wrong direction”;
• a blog post discussing “a significant development” for practice at the Patent Trial and Appeal Board; and
• a piece examining the impact of LKQ Corporation v. GM Global Technology Operations LLC, an en banc case that “threw out longstanding tests for determining if design patents are invalid as obvious.”

This afternoon the Federal Circuit decided EcoFactor, Inc. v. Google LLC, an en banc patent case. In an opinion authored by Chief Judge Moore and joined by seven other judges, the court reversed a denial by the Western District of Texas of a motion for a new trial on damages. The Federal Circuit held the district court abused its discretion by failing to exclude expert testimony that prior licensees agreed to a particular royalty rate. Judges Reyna and Stark dissented in part. 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 discussing how the Federal Circuit recently “said scientists Jennifer Doudna and Emmanuelle Charpentier will get another chance to show they ought to own the key patents on what many consider the defining biotechnology invention of the 21st century”;
• an article discussing how a panel of the D.C. Circuit “seemed skeptical” of Judge Newman’s argument “that a statute allowing courts to self-police instances of misconduct and disability is unconstitutional across the board”;
• a blog post criticizing a recent Federal Circuit decision that he says “appears to have unintentionally upended fundamental principles of [inter partes review] estoppel”; and
• a report that the Dana-Farber Cancer Institute and Memorial Sloan-Kettering Cancer Center filed an amicus brief with the Federal Circuit, urging the court to “review a decision rejecting Xencor’s application for an antibody patent.”

Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. With respect to granted petitions, the Supreme Court recently heard oral argument and issued opinions, respectively, in two cases decided by the Federal Circuit. With respect to pending petitions, three new petitions have been filed in two patent cases and a pro se case, a brief in opposition and a reply brief was filed in case raising a question related to certification of questions of law, and another reply brief was filed in support of a petition in a patent case. Finally, since our last update the Court has denied two petitions, one raising questions related to recusal and the other raising a question related to patent infringement. Here are the details.

Here is an update on activity in cases pending before panels of the Federal Circuit where the cases involve at least one amicus brief. We keep track of these cases in the “Other Cases” section of our blog. With respect to these cases, since our last update we highlight one new opinion in government contract case, one new patent case raising a question related to Article III standing, and one new argument recap in a patent case involving a challenge to a district court’s claim construction. Here are the details.

Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. With respect to granted petitions, the petitioner filed his reply brief in Soto v. United States, a veterans case. With respect to pending petitions, one new petition was filed in a government contract case; a waiver of the right to respond was filed in a takings case; a brief in opposition was filed in a patent case; and an amicus brief was filed in the same takings case. In addition, the Court denied petitions in two patent cases and five pro se cases. Here are the details.