FedCircuitBlog

• ITC Ruling Offers Chance For Infringer Reprieve From Import Bans – For the first time, the U.S. International Trade Commission has suspended enforcement of a remedial order based on an earlier decision from the Patent Trial and Appeal Board.
• Racing Tribunals: The Judge, the Jury, and the PTAB – Later this fall, the U.S. Supreme Court will rule on the petition Personal Audio, LLC v. CBS Corporation. Dennis Crouch explores how this case adds an important third tribunal to the patent story.

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• CBM Review: A Postmortem – The covered business method review, expiring on September 15th, has seen a rise and fall in popularity that can be attributed to the Federal Circuit.
• Oracle Loses JEDI Appeal – In Oracle America, Inc. v. United States, the Federal Circuit affirmed the decision to allow the Department of Defense to issue a $10 billion, 10-year cloud-computing contract to Microsoft.
• Federal Circuit Has Jurisdiction over Constitutional Questions in AIA Appeals – Affirming the decision of the lower court in Security People, Inc. v. Iancu, the Federal Circuit confirmed its ability to decide factual issues when necessary to resolve a constitutional challenge.

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• Iancu Says Congress May Be Up For Patent Eligibility Reform – In an effort to enhance clarity and guidance for innovators, U.S. Patent and Trademark Office Director Andrei Iancu suggests that Congressional reform of Section 101 of the Patent Act may be the key to providing a more predictable and consistent analytical framework for determining what is patentable and what is not.
• Chanel Adds Camellia Drawing to its Arsenal of Trademarks – This past July, the U.S. Patent and Trademark Office granted trademark registration for Chanel’s five-petaled camellia drawing used in connection with the luxury brand’s products and packaging.
• Apple, Cisco, Google, Intel Sue PTO Over Its America Invents Act Policies – On Monday, Apple Inc., Cisco Systems Inc., and Intel Corp. sued PTO Director Andrei Iancu in the Northern District of California. Using a two-pronged litigation strategy, technology industry giants assert that the current USPTO policies deprive the tech industry of its access to the America Invents Act.

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• Inventorship as the Wind Blows – The Federal Circuit’s decision in Egenera, Inc. v. Cisco Systems, Inc. vacated the invalidation of a data center technology patent despite the patent not listing all inventors.
• Baxalta Wins New Try at Hemophilia Drug Patent Infringement Suit – Baxalta can revive its infringement claims following the Federal Circuit’s ruling that the lower court misconstrued two key terms within the patent.
• Federal Circuit Affirms Dismissal of Patent Infringement Complaint Under Res Judicata – The Federal Circuit held that res judicata did apply to a patent infringement case as a previous case with the same claims was dismissed for noninfringement, not on procedural grounds.

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• Three lessons from the Federal Circuit’s recent 101 reversal in XY v Trans Ova Genetics – Partner John O’Quinn and Associate Hannah Bedard from Kirkland & Ellis delve into the key aspects and lessons to take away from the Federal Circuit’s recent precedential decision in XY v. Trans Ova Genetics.
• Court of Appeals Upholds Mighty Mug’s Trade Victory Against Patent-Infringing Chinese Imports – Mighty Mug, represented by Goetz Fitzpatrick, secured a victory in a fight against infringers who have been flooding the market with cheap knockoffs to Mighty Mug’s popular drinkware line.
• Apple v. Prepear: Does Apple Really Need All the Fruit? – The large tech company, Apple, claims that an image of a pear used in connection with a meal preparation app called Prepear is likely to cause consumer confusion and threatens to dilute the quality of its famous and distinctive mark. Nicole Page of IP Watchdog provides an inside glimpse into Apple’s newest opponent in its “battle for brand supremacy.”

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• Sweat the Small Stuff: Lessons of Federal Circuit Damages Cases – Marking, interest accrual, and awards calculation have been important issues in six Federal Circuit decisions on patent damages, but the Federal Circuit has been reluctant to overturn jury awards in other damages cases.
• Standard Essentiality is a Question for the Fact Finder – Earlier this month, the Federal Circuit held in Godo Kaisha IP Bridge 1 v. TCL Communications Technology Holdings that the trier of fact should determine whether patent claims are essential to all implementations of an industry standard.
• The Little Tucker Act is Alive and Well – The Federal Circuit’s recent decision in National Veterans Legal Services Program v. United States reaffirms to plaintiffs with small non-tort claims against the United States that they can file either in the Court of Federal Claims or in a local district court.

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• Qualcomm Urges Fed Circuit to Keep PTAB Win Against Apple – Arguing that Apple is now trying to “manufacture a legal issue,” Qualcomm maintains that the PTAB correctly upheld its patent on a touch-screen function that allows users to toggle between multiple windows.
• CAFC Affirms Sanctions Entered Against Overly Litigious Doctors – Last week, the Court of Appeals for the Federal Circuit (CAFC) affirmed a district court decision in Kahn v. Hemisphere Inc, which involved an action for patent infringement regarding an arteriovenous shunt.
• Government Reliance on Waiver Argument to Keep Price Adjustment Windfall Fails – In articulating limits to the government’s ability to rely on the waiver doctrine to enforce Federal Acquisition Regulation (“FAR”) provisions of questionable legality, the Federal Circuit in effect challenges the government’s approach to measuring the impact of cost accounting practices changes.

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• Federal Circuit Extends Pandemic-Related Courthouse Closure – Restrictions on public access to the courthouse have been extended due to the pandemic, limiting entry to staff only until September 14.
• Federal Circuit reverses district court finding of patent ineligibility for sex selection technology patents – In XY, LLC v. Trans Ova Genetics, LC, the court found that the asserted claims were directed toward a patent-eligible improvement of a method for sorting particles, rather than an abstract idea.
• “Untethered” Obviousness Determination Reversed – the Federal Circuit vacated and remanded a PTAB finding of unpatentability because the board did not adequately support its reasoning in Alacritech, Inc. v. Intel Corp.

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• Conventional Technologies Used in Unconventional Ways – The Federal Circuit points out that “conventional separation technologies can be used in unconventional ways” in Illumina, Inc. v. Ariosa Diagnostics, Inc.
• Foreign Visitor’s Unborn Child Not a ‘Person’ – A fetus traveling to the United States does not qualify as a legal “person” under the Vaccine Act.
• Judgment as a Discovery Sanction was Appropriate – A TTAB trademark cancellation in the form of a discovery sanction subsequently affirmed by the Federal Circuit.

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Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today’s report highlights an article discussing the potential impact of the Federal Circuit’s holding in National Veterans Legal Services Program v. United States on fees for searching and downloading federal case files, more commentary on the confusion generated by the Federal Circuit’s approach to patent eligibility in American Axle & Manufacturing, Inc. v. Neapco Holdings LLC, and news concerning Fitbit’s case decided by the Federal Circuit last Thursday.