The U.S. Court’s website reveals that Federal Circuit Judge Kathleen O’Malley plans to retire from the bench on March 11, 2022. Judge O’Malley has served as a Federal Circuit judge for over ten years and, given her past experience as a federal district judge, as a federal judge for over twenty-six years. Notably, when paired with Judge Wallach’s taking senior status this past May, Judge O’Malley’s retirement may mean that the Federal Circuit will not have any active judge with prior experience as a trial judge. That said, coming on the heels of Tiffany Cunningham’s confirmation vote last week, Judge O’Malley’s retirement will provide President Biden with his second opportunity to appoint a judge to the Federal Circuit, and perhaps President Biden will seek an experienced district judge to fill Judge O’Malley’s position.
Senate Confirms Tiffany P. Cunningham, First Black Circuit Court Judge to the U.S. Court of Appeals for the Federal Circuit – On BlackEnterprise.com, Andrea Blackstone reports on Tiffany Cunningham’s Senate confirmation and classifies it as a “historic moment . . . in the America judicial system.”
Thoughts on Tiffany Cunningham’s Confirmation to the CAFC – Eileen McDermott reports on what Tiffany Cunningham’s appointment “might mean for the [Federal Circuit] long term.”
They Patented a Better SandBox — Obviousness IPRs – Dennis Crouch reports the Federal Circuit decision in Oren Tech v. Proppant Express, where the court rejected “a PTAB IPR decision because the precise obviousness argument regarding a functional limitation was not expressly stated. . . [and has] another go-round with the PTAB failing to consider commercial success.”
Fed Circ Revives Chemours Polymer Patents, Reverses PTAB Ruling – On Reuters.com, Blake Brittain reports on Chemours Company FC LLC v. Daikin Industries Ltd., where “Daikin challenged patent validity based on earlier invention.”
Senate Confirms Perkins Coie’s Tiffany Cunningham to Federal Circuit – On Reuters.com, Blake Brittain reports on the confirmation of Tiffany Cunningham to the Federal Circuit.
Tiffany Cunningham Confirmed by Senate as First Black Federal Circuit Judge – Jack Rodgers posted an article on Courthouse News Service also about Judge Cunningham’s confirmation.
Federal Circuit: Clear Attempts to Manipulate Venue Won’t Defeat Motions to Transfer – On IPWatchDog.com, Eilieen McDermott writes about how the Federal Circuit “granted Samsung’s and LG’s writs of mandamus, which sought to order the United States District Court for the Western District of Texas to transfer the underlying actions to the United States District Court for the Northern District of California.”
Zalzar FZE Fails to Boost Middle East Federal Contract Recovery – Daniel Seiden writes on BloombergLaw.com about Zalzar FZE v. Dir./Chief Exec. Officer of Army & Air Force Exchange Service, where the “Federal Circuit [affirmed an Armed Services Board of Contract Appeals’ decision] . . . [awarding] airfare costs.”
The Arthrex Fix Is No Fix At All – In an article posted on iam-media.com, Paul Morinville reports that “[t]he long-awaited SCOTUS Arthrex decision does not provide the solution to the problem at the heart of the case.”
Texas Court Bounces Triller/TikTok Patent Dispute to California – Chris Cooke wrote an article on completemusicupdate.com reporting about how a Texas district judge sent a patent case between Triller and TikTok to the courts in California, perhaps due to criticism by the Federal Circuit.
Are 5% of All U.S. Issued Patents Presumed to Be Unenforceable Under Laches Due to Their Priority Claims? – On IPWatchDog.com, Kate Gaudry reports on the “potential impacts” of the recent Federal Circuit case Hyatt v Hirshfeld concerning prosecution laches.
This evening the United States Senate voted 63-33 to confirm Tiffany P. Cunningham’s nomination to the Federal Circuit. Once she receives her commission, she will make history by becoming the first African American judge on the Federal Circuit. As we have highlighted, she will join the court with prior experience as a law clerk at the Federal Circuit with Judge Dyk. She is a registered patent attorney with an undergraduate degree in chemical engineering and nearly two decades of experience as a patent litigator with Perkins Coie in Chicago.
Recent Federal Circuit Developments in Patent Licensing – On PharmExec.com, Johnathan Harris, Heather Brady, and Drew Hiller have written an article concerning the Federal Circuit and “recent legal developments [that] can help companies avoid infringement.”
Federal Circuit: ‘Patentees Need Not Prove Their Case at the Pleading Stage’ – In her article on LawStreetMedia.com, Christina Tobacco wrote about an opinion recently issued by the Federal Circuit where the court “considered the stringency of pleading requirements in patent infringement cases.”
SCOTUS Decides Arthrex: Much Ado about Inter Partes Reviews – Aziz Burgy posted an article on BloombergLaw.com about the Supreme Court’s recent decision in Arthrex.
Court Ruling May Let Veterans Access Both Montgomery and Post-9/11 GI Bill Benefits – Patricia Kime reported on Military.com about the Federal Circuit’s decision in Rudisill v. McDonough and how it “could require the Department of Veterans Affairs to pay veterans an additional year of education benefits under both the Montgomery GI Bill and the Post-9/11 GI Bill.”
On Tiffany Cunningham’s Appointment to the CAFC: An Impeccable Candidate and a Rallying Call for More Diversity in IP – In a post on IPWatchDog, Emer Simic writes about Tiffany Cunningham, whose “confirmation [is] now imminent” and has “reached [a] historic milestone.”
Federal Circuit Resumes In-Person Argument With $1.2 Billion Cancer Drug Case – Scott Graham commented on the oral argument in Juno Therapeutics Inc v. Kite Pharma Inc., in which Chief Judge Moore “pressed [attorneys] repeatedly on whether . . . [a] patent on a groundbreaking approach to cancer treatment . . . [is] sufficiently described.”
FBI Agent Who Fought VA for GI Bill College Benefits Wins Appeal; Case Could Help Vets Nationwide – In the Chicago Sun Times, Stephanie Zimmermann discusses Rudisill v. McDonough, where Jim Rudisill’s “successful legal battle could result in additional benefits for other long-serving veterans.”
Pentagon Cancels JEDI Cloud Contract After Years of Contentious Litigation – Jared Serbu, deputy editor of FederalNewsNetwork.com, reports that the “bitterly contentious saga over what was once envisioned [as] the largest information technology procurements . . . finally came to an end . . . as Defense officials said they would no longer pursue the [Joint Enterprise Defense infrastructure] JEDI Cloud contract.”
Federal Circuit Judges Signal Support for Facebook Patent Win – On BloombergLaw.com, Perry Cooper reports that judges of the Federal Circuit “appear to agree with Facebook Inc. that [certain] patents . . . are invalid as abstract.”
Fed Circ Probes Validity of Cancer Treatment Patent from $1.2 Bln Win – Blake Brittain reports for Reuters that a panel of judges for the Federal Circuit “grilled [attorneys] on the validity of a cancer treatment patent that netted them nearly $1.2 billion.”
En Banc: When Employees Leave with a Half-Baked Invention – On PatentlyO.com, Dennis Crouch discusses Bio-Rad Laboratories, Inc. v. International Trade Commission and the case’s pending petition for rehearing en banc.
Federal Circuit Tears Up Road Map for Keeping Patent Cases in Texas – Scott Graham posted an article on Law.com reporting on how the Federal Circuit “ordered [Western District of Texas Judge] Albright to transfer patent actions brought by Ikorongo Technology LLC against Samsung Electronics and LG Electronics.”
District Court Thwarts $100 Million Damages Award, Finding Litigation Conduct Exceptional – On IPWatchDog, Gene Quinn writes about a long, drawn-out patent infringement battle that “saw action in front of a jury, at the district court, at the PTAB, at the Federal Circuit, and even . . . the Supreme Court.”
Oracle Files Yet Another JEDI Challenge with the U.S. Supreme Court – Sebastian Moss on DataCenterDynamics.com reports that the “US military appears trapped in an endless conflict with no clear winner.”
Performance-Based Actions: How Much Is Too Much? – In an article on FedSmith.com, Robbie Kunreuther reflects on a decision by the Federal Circuit concerning “unacceptable performance cases and how they should be addressed.”
This week and last the Supreme Court decided United States v. Arthrex, Inc. and Minerva Surgical, Inc. v. Hologic, Inc., two patent cases appealed from the Federal Circuit. Here is a report on recent articles and blog posts related to these cases.
USPTO Provides Guidance on Director Review Process Under Arthrex – On IPWatchDog, Eileen McDermott and Steve Brachmann write about how after the Arthrex decision the Patent and Trademark Office announced that it would implement the Supreme Court’s remedy using an interim rule that gives the Acting Director the authority to consider requests for reconsideration of final decisions made by the Patent Trial and Appeal Board.
What Will Arthrex Review Look Like? – Bradley Roush and George E. Quillin posted an article on the National Law Review raising questions many are having about how the Patent and Trademark Office will implement the new Director-led review process.
Justices Uphold a Narrow Version of Patent Assignor Estoppel – On SCOTUSBlog, Eric M. Fraser discusses how the Supreme Court reached its decision in Minerva narrowing the doctrine of assignor estoppel.
Professor Kagan v. Professor Barrett, Round 1 of N – On the Volokh Conspiracy, Josh Blackman posts about how in the Minerva case “two former professors were on opposite sides of the docket.”