Yesterday the Supreme Court granted the petitions for certiorari in three related Arthrex cases: (1) United States v. Arthrex, Inc. (19-1434), (2) Smith & Nephew, Inc. v. Arthrex, Inc. (19-1452), and (3) Arthrex, Inc. v. Smith & Nephew, Inc. (19-1458). The Court decided to consolidate the cases for briefing and oral argument and announced that all future filings and activity will be reflected on docket of No. 19-1434. The Court’s widely anticipated review will determine the fate of Administrative Patent Judges (APJs) under the Appointments Clause. Here are the details.
Last week, the Federal Circuit held an en banc session to hear oral argument in National Organization of Veterans Advocates, Inc. v. Secretary of Veterans Affairs. In this case, the court considered two questions posed by NOVA in its petition: (1) whether the Federal Circuit has jurisdiction to review a generally applicable interpretive rule promulgated by the Department of Veterans Affairs through its Adjudication Procedures Manual, and (2) whether a Federal Circuit Rule impermissibly supersedes a statute of limitations. Additionally, as a preliminary matter, the court heard argument as to whether NOVA has Article III standing in this case. This is our argument recap.
Earlier this week, on October 7, 2020, the Supreme Court heard oral argument in Google LLC v. Oracle America, Inc., the long-running software copyright case. Due to the COVID-19 pandemic, this extended oral argument took place over the phone and lasted for over 90 minutes. The Court worked to great lengths to untangle the attorneys’ many vital arguments that have developed over the past decade. As we previewed the day before the argument, the issues, in this case, are the availability of copyright protection for software interfaces, in particular Oracle’s Java SE declarations, and Google’s copying of such code that it contends is fair use.
On October 7, 2020, the Supreme Court will hear oral arguments from the attorneys for two leading technology giants in the long-running software copyright case, Google LLC v. Oracle America, Inc. At issue is the availability of copyright protection for software interfaces, in particular Oracle’s Java SE declarations, and Google’s copying of such code that it contends is fair use.
Recently we hosted an online symposium in anticipation of last week’s sunset of covered business method review (CBMR), proceedings held by the Patent Trial and Appeal Board to review the patentability of claims included in “covered business method” patents. The Federal Circuit, in turn, reviews the PTAB’s judgments in these proceedings. Six authors across four blog posts presented various analyses of CBMR, including arguments for and against allowing the program to sunset, the history of CBMR, and the significance of Federal Circuit opinions reviewing decisions by the PTAB in these proceedings. Here, we wrap up our online symposium by highlighting each contribution and its central premise, before I provide some brief closing remarks reflecting on what we have read.
Stay jurisprudence from the Federal Circuit is a legacy of the Transitional Program for Covered Business Method (“CBM”) Review. Prior to the America Invents Act (AIA), the Federal Circuit rarely heard appeals related to stay motions because of the final-judgment rule. However, under the CBM statute, a party to a CBM review was allowed to take an immediate interlocutory appeal from a district court’s decision regarding whether to stay an infringement case pending a CBM review. The CBM statute was intended to increase the predictability of context-dependent stay decisions and to increase the grant rate of CBM-related stay motions. At the sunset of the eight-year CBM program on September 16, 2020, we reflect on the CBM stay jurisprudence developed around this statute.
Online Symposium: The CBM Program Should Expire This Week as Provided by Law—Effective Alternatives for Robust Administrative Reviews of Issued Patents Remain
Guest post by Ron D. Katznelson, Ph.D.
The Transitional Program for Covered Business Method Patent Review (CBMR) was enacted in § 18 of the America Invents Act (AIA) for reviewing issued Covered Business Method (CBM) patents – patents that claim “a method or corresponding apparatus for performing data processing or other operations used in the practice, administration, or management of a financial product or service.” The AIA also set a sunset expiration date for CBMR on September 16, 2020. For the reasons explained below, CBMR should expire this week as intended and enacted in the AIA. As further explained below, those who wish to challenge CBM patents after that date, can effectively do so using any of the three alternative administrative proceedings at the US Patent & Trademark Office (PTO) that remain available with no sunset expiration, or by federal court action.
Guest post by Saurabh Vishnubhakat
As the Transitional Program for Covered Business Method (“CBM”) Review reaches its sunset date, it is useful to consider the design and implementation of this program and what lessons can be drawn from its eight-year run. Of particular interest are two unusual aspects of CBM review that have interacted with each other in instructive ways.
As we previously reported, last week in Facebook, Inc. v. Windy City Innovations, LLC the Federal Circuit granted panel rehearing, issued a modified panel opinion, and denied en banc rehearing. Facebook sought rehearing to challenge the panel’s decisions concerning joinder in inter partes review proceedings, as well as the broader question of whether the Federal Circuit owes deference to interpretations of statutory provisions made by the U.S. Patent and Trademark Office’s Precedential Opinions Panel. Here we summarize the modified panel opinion.
The Transitional Program for Covered Business Method (“CBM”) Review will come to an end on September 16, 2020, after eight years. In our view, the CBM program’s brief history is a cautionary tale about the costs that are imposed on the system when the Supreme Court delays in rectifying a mistake.