FedCircuitBlog

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.

Recently FedCircuitBlog, in conjunction with the Tsai Center for Law, Science and Innovation at SMU Dedman School of Law, hosted its third online symposium. Titled “Patent Law and Institutional Choice,” this symposium focused on the latest legal developments and judicial decisions addressing the institutional structure of the U.S. patent system and the role of its institutions. Over the past several weeks, FedCircuitBlog published written contributions from each of the symposium’s nine panelists. Here, we wrap up our online symposium by linking to and highlighting the focus of each contribution.

Congress created the Federal Circuit in 1982 at least in part to promote uniformity in patent law. At that time, patent law was in disarray, the result of different interpretations of patent law by the various federal appellate courts. The problem that the creation of the Federal Circuit attempted to solve was the fact that the Supreme Court was not resolving these circuit splits in U.S. patent law. But the Supreme Court’s failure to resolve circuit splits regarding differing interpretations of patent law was not always the problem highlighted by advocates for a national patent court, and this particular problem might not even exist today in the absence of the Federal Circuit given the Supreme Court’s recent, renewed interest in deciding patent cases. So, what have been the historical justifications for a national patent court, and what justification might exist today for the Federal Circuit?

Guest Post by Dr. Christal Sheppard

I am a patent law expert. However, a look at recent machinations in patent law, particularly in the United States Patent and Trademark Office’s (USPTO) leadership and the USPTO’s Patent Trial and Appeals Board (PTAB), reveals that many of the issues at the heart of patent law disputes stem from the Administrative Procedures Act (APA), administrative law, constitutional law, and, of course, politics, politics, politics. As a patent expert, I have found myself talking about the APA so often that I unconsciously write Administrative Patent Act by mistake. The United States Supreme Court decision in Arthrex, regarding the composition of PTAB, is the most recent foray into the intersection of administrative law and patent law.1

Guest Post by Paul R. Gugliuzza

Professor Rochelle Dreyfuss, probably the keenest academic observer of the Federal Circuit, memorably called the court “a continuing experiment in specialization.” She was writing in 2004, shortly after the twentieth anniversary of the court’s founding. With the court’s fortieth anniversary approaching in 2022, can we finally answer the question: has the Federal Circuit experiment succeeded?

This morning the Federal Circuit issued a precedential order concerning attorneys who violated the court’s protocols issued in light of COVID-19. Specifically, while the in-person oral argument protocols allowed only arguing counsel and no more than one attendee to be present, the parties in question brought two arguing counsel and two attendees in violation of the protocols. Notably, the court did not sanction the attorneys, but indicated that “the bar is on notice that this court takes compliance with these protocols very seriously and that sanctions will likely be imposed if a future violation of the protocols takes place.” Here is the introduction to the order.

Guest Post by Laura G. Pedraza-Fariña

When the 97th Congress passed The Federal Courts Improvement Act establishing the Federal Circuit as a centralized patent appeals court, Congress was predominantly concerned with addressing the wildly divergent set of patent rules developed by different circuit courts.1 Patent uniformity—and therefore certainty and notice to the nation’s innovators—drove much of the debate around the need for a centralized patent appeals court.2

Our modern technological and legal environment, however, could not be more different from the pre-genetic engineering, pre-Internet 1980s society. The late 1980s and 1990s ushered the modern age of genetic engineering and, with it, the possibility of patenting genes, gene editing technology, and diagnostic methods based largely on genetic sequencing.3 The emergence of the internet, and therefore of internet-based business models and software business patents, has also profoundly changed the types of patents that now dominate the Patent and Trademark Office (PTO) and the Federal Circuit’s dockets.4

Guest Post by Greg Reilly

For over a decade, patent litigation has been surprisingly concentrated in a single federal district court. At one time, almost half of the nation’s patent litigation occurred in small towns in eastern Texas.1 Now, 20% of patent litigation occurs before a single judge based in Waco, Texas.2 This concentration of patent litigation is not the result of the inherent characteristics of these districts but instead of the affirmative efforts of particular judges to attract patent cases to their courthouses.3 Scholarly commentary of this forum selling and patent litigation concentration, including by myself, has been largely critical.4 The primary objection is that the districts and judges competing for patent litigation improperly skew procedures in favor of the patentees who make the forum choice.5