FedCircuitBlog

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.

Here is an update on recent en banc activity at the Federal Circuit in patent cases. A response brief was filed in a pending en banc case concerning a district court’s responsibility to scrutinize a patentee’s reliance on supposedly comparable licenses. Petitioners also filed two new petitions, one seeking an emergency injunction and one presenting a question regarding vicarious liability for direct infringement. Here are the highlights.

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

• a blog post suggesting reasons for the ”the prevalence of filing errors and subsequent correction requirements in Federal Circuit appeals–even among the nation’s most sophisticated appellate practitioners”;
• a report covering how Chief Judge Moore “told the Court of Appeals for the D.C. Circuit on Thursday that Judge Pauline Newman’s appeal of her effective removal from the [Federal Circuit] should fail because her claims do not meet the ‘exceptional circumstances’ warranted for transfer to another circuit and her constitutional challenges are precluded”;
• an article asking whether the Supreme Court decision in Loper Bright Enterprises v. Raimondo will “chip away at Federal Circuit Rule 36 summary affirmances” or even “offer a path for [Patent Trial and Appeal Board] appellants to circumvent Rule 36 altogether”; and
• a piece highlighting how the Supreme Court granted certiorari Friday to “review whether the government need only pay six years of unpaid combat-related special compensation if a veteran files a claim.”

On Friday, the Supreme Court granted the petition for a writ of certiorari presented in Soto v. United States, a veterans case. The Supreme Court indicated it will consider the following question: “Given the Federal Circuit’s holding that a claim for compensation under 10 U.S.C. § 1413a is a claim ‘involving . . . retired pay’ under 31 U.S.C. § 3702(a)(l)(A), does 10 U.S.C. § 1413a provide a settlement mechanism that displaces the default procedures and limitations set forth in the Barring Act?” What follows the break is the relevant background and question presented by Soto’s counsel.

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

• a news alert reporting how “Dish Network LLC asked the U.S. Supreme Court to review whether courts can require attorneys to pay legal fees in exceptionally frivolous patent cases”;
• a blog post analyzing a recent Federal Circuit decision where the central issue in the case “revolved around the interpretation of [35 U.S.C.] § 311(b)’s limitation that [inter partes review] challenges may be based only on ‘prior art consisting of patents or printed publications’”; and
• an article covering how the Federal Circuit recently affirmed a Trademark Trial and Appeal Board decision “canceling trademarks claiming protection for the pink color of ceramic hip components.”