FedCircuitBlog

Last week, we reported that the Federal Circuit issued a relatively rare opinion granting panel rehearing in a patent case, Novartis Pharmaceuticals v. Accord Healthcare Inc. In the original, now-vacated opinion, a panel comprised of Judges O’Malley and Linn, with Chief Judge Moore dissenting, indicated the court would affirm a district court’s judgment that claims are not invalid for inadequate written description. Notably, however, a different panel ruled on the motion for panel rehearing. In particular, with Judge O’Malley’s retirement from the court, Judge Hughes joined the panel. The new panel, and in particular Chief Judge Moore (no longer dissenting) and Judge Hughes, with Judge Linn now dissenting, granted the petition for panel rehearing, vacated the panel’s prior decision, and, in the new opinion, now reverse the district court’s judgment. Perhaps most importantly, the changed outcome reflects a difference of view regarding application of the written description requirement. Here is an update on the case.

This morning, the Supreme Court denied the petition for certiorari in American Axle & Manufacturing, Inc. v. Neapco Holdings LLC, an important patent eligibility case decided by the Federal Circuit in 2019. In this case, the petitioner requested the Supreme Court grant review to reconsider the appropriate standard for determining patent eligibility and to determine whether eligibility is a question of law or fact. The Solicitor General previously recommended the Court grant review to reconsider the first question presented, addressing the appropriate standard for determining eligibility. But today the Court denied the petition.

One of Justice Breyer’s last acts as an Associate Justice of the Supreme Court might be voting to deny a petition for a writ of certiorari in an important patent eligibility case decided by the Federal Circuit. The case, American Axle & Manufacturing, Inc., tests the precedential value and limits of the test Justice Breyer himself created for patent eligibility ten years go in Mayo Collaborative Services v. Prometheus Laboratories, Inc. Today, the Supreme Court held its last conference of the current term; American Axle was on the list for consideration at today’s conference; and Justice Breyer notified President Biden that his retirement would be effective as of tomorrow at noon eastern.

This morning the Federal Circuit issued a Notice of Revised Protocols for In-Person Argument. Notably, the revised protocols now allow counsel to bring up to two attendees into the courthouse. Here is the full text of the announcement.

The Supreme Court issued its opinion today in George v. McDonough. In a six to three decision, the Court affirmed the Federal Circuit’s ruling, finding that “[t]he invalidation of a VA regulation after a veteran’s benefits decision becomes final cannot support a claim for collateral relief based on clear and unmistakable error.” Justice Barrett authored the Court’s majority opinion, joined by Chief Justice Roberts and Justices Thomas, Alito, Kagan, and Kavanaugh. Justice Sotomayor filed a dissenting opinion, as did Justice Gorsuch, who was joined by Justice Breyer and in part by Justice Sotomayor. Here is our summary of the Court’s opinions.

Yesterday the Federal Circuit issued a Notice of New Revised Protocols for In-Person Arguments. Notably, the revised protocols include expanded testing documentation options available to counsel and attendees. Here is the full text of the announcement.

On Friday, the Federal Circuit announced that it intends to sit in the Philadelphia area as part of its November 2022 session. Here is the full text of the announcement.

This week–one year and three weeks after the Supreme Court’s order inviting the Solicitor General to express the views of the United States–the Solicitor General finally filed its amicus brief in American Axle & Manufacturing, Inc. v. Neapco Holdings LLC. In this case, the petitioner long ago requested the Supreme Court grant review to reconsider the appropriate standard for determining patent eligibility and to determine whether eligibility is a question of law or fact. This week the Solicitor General recommended the Court grant review to reconsider the first question presented, addressing the appropriate standard for determining eligibility. Here is an update on the case, including a review of the background of the case, a summary of the government’s brief, and a brief discussion of what comes next.

This morning the Federal Circuit issued a Notice of New Revised Protocols for In-Person Arguments. In it, the court announced it will apply the protocols it released in January 2022 to the court’s May 2022 session, but then apply new protocols beginning with the court’s June 2022 session. Notable aspects of the new protocols include the court’s refusal to entertain motions expanding attendance beyond arguing counsel and one necessary attendee, a mask mandate, and a requirement of proof of negative COVID testing after arriving in the Washington, D.C. area. Here is the full text of today’s announcement.

This afternoon, the Federal Circuit announced the swearing-in of its newest Judge, the Honorable Leonard P. Stark. Judge Stark served as Chief Judge for the District of Delaware from 2014 to 2021. In that time he presided over hundreds of patent cases and will, as a result, bring a wealth of experience in patent cases to the bench of the Federal Circuit. We congratulate Judge Stark and look forward to his service at the Federal Circuit. Here is the full text of today’s announcement.