FedCircuitBlog

Starting next week, Fed Circuit Blog will publish written contributions from law professors participating in Fed Circuit Blog’s third online symposium. Entitled “Patent Law and Institutional Choice,” this symposium explores the institutional structure of the U.S. patent system and the roles of its institutions: the U.S. Congress; U.S. Patent and Trademark Office; federal district courts and juries; the U.S. Court of Appeals for the Federal Circuit; and the U.S. Supreme Court. Confronting critiques of this structure and these institutions, the symposium considers how the U.S. patent system may be improved to further the innovation economy. Here is more information on the topics these professors will discuss in their written contributions.

Next week, FedCircuitBlog, in conjunction with the Tsai Center for Law, Science and Innovation at SMU Dedman School of Law, will be hosting its third online symposium. Entitled “Patent Law and Institutional Choice,” this symposium will explore the latest major controversies, legal developments, and judicial decisions in the field of patent law through panel presentations and discussions with distinguished academics. In particular, the symposium will explore the institutional structure of the U.S. patent system and the roles of its institutions: the U.S. Congress; U.S. Patent and Trademark Office; federal district courts and juries; the U.S. Court of Appeals for the Federal Circuit; and the U.S. Supreme Court. Confronting critiques of this structure and these institutions, this symposium will consider how the U.S. patent system may be improved to further the innovation economy. After SMU hosts three online discussion panels on Friday, October 29, Fed Circuit Blog will later publish written contributions from each panelist. Here is more information on the symposium, including its topics and speakers and how to register to attend the online discussion panels.

Last week we hosted an online symposium, “Year in Review–The Federal Circuit in 2020,” reviewing important opinions of the Federal Circuit from 2020. Seven authors published six blog posts addressing various cases within the Federal Circuit’s exclusive jurisdiction: trade, patent, Tucker Act, federal employment, and veterans law cases. Here, we wrap up our online symposium by linking to and highlighting the focus of each contribution.

Guest Post by Blair E. Thompson

In 2020, the Federal Circuit addressed important questions regarding “pro-claimant” policies and rules governing the Department of Veterans Affairs. The court also approved VA’s interpretation of its regulation regarding discharges due to “willful and persistent misconduct” and paved the way for challenges to VA’s internal adjudication policies and procedures manual.

Guest Post by James M. Eisenmann

In a series of precedential decisions in 2020 (and early 2021), the Federal Circuit limited the impact of the Department of Veterans Affairs Accountability and Whistleblower Protection Act — holding that U.S. Merit Systems Protection Board (MSPB) still may review the reasonableness of imposed penalties and that Veterans Affairs (VA) may not use 38 U.S.C. § 714 to remove employees for conduct or performance that occurred prior to the enactment of the Act. See, Sayers v. Dep’t of Veterans Affairs, 954 F.3d 1370 (Fed. Cir. 2020); Harrington v. Dep’t of Veterans Affairs, 981 F.3d 1356 (Fed. Cir. 2020); and Brenner v. Dep’t of Veterans Affairs, No. 19-2032 (Fed. Cir. March 9, 2021).

Guest Post by Gregory C. Sisk

In this blog post, I discuss Court of Federal Claims/Tucker Act decisions by the Federal Circuit on (1) the requirement of a money-mandating statute for statutory-based money claims, (2) whether a money-mandating requirement applies as well to claims to recover illegal exactions, (3) the special case of a breach of trust claim under the Indian Tucker Act, and (4) the continued availability of a Tucker Act taking claim even when a claim could alternatively be framed in tort. These 2020 Federal Circuit decisions affirmed the continued stability of Court of Federal Claims jurisdiction through careful application and welcome clarification and extension of established and common-sense Tucker Act doctrines.

Guest post by Mark Lemley[1]& Tyler Robbins[2]

This blog post provides a brief summary of four of the most significant patent cases decided by the Federal Circuit last year. It covers cases concerning assignor estoppel, transfer, venue, and the application of the Appointments Clause of the U.S. Constitution to administrative patent judges.

Guest Post by Kristen Osenga

In any given year, the Federal Circuit covers a wide spectrum of issues in patent law, and 2020 was no different. Of course, a lot about 2020 was different — including seeing the Court hold (and now livestream) telephonic arguments — but most of the patent cases decided were similar in type to other years . . . a little patent-eligible subject matter, a little jurisdiction and venue, a case about infringement of standard essential patents, and a bit of deciding what the Patent Trial and Appeal Board can and cannot do. There were no real blockbuster cases in 2020 (other than maybe the Arthrex denial of rehearing, more on that later). This could be due to the pandemic, or maybe it is a sign that patent law is settling in for a bit. Of course, that does not mean the law has settled in the right place, but that is a different issue for a different day.

For today, a few cases are worth highlighting from the Federal Circuit’s 2020 patent opinions. To be clear, this is not an exhaustive review, but rather simply a short selection noting some of the more important patent cases decided last year.

Guest Post by Devin S. Sikes

For the international trade bar, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) remains as important as ever because it so often has the final say on issues arising under U.S. international trade law. In 2020, the Federal Circuit issued thirty opinions in appeals from the U.S. Court of International Trade (CIT).[1] The Federal Circuit deemed nineteen of those thirty opinions worthy of “precedential” status.[2] To be sure, each of those nineteen precedential opinions addressed important antidumping, countervailing duty, and customs questions. Even the Federal Circuit’s non-precedential opinion in American Institute for International Steel v. United States concerned a significant issue: whether Section 232 of the Trade Expansion Act of 1962 (Section 232), which President Trump invoked more often than any of his predecessors, unconstitutionally delegates legislative authority to the President. Nevertheless, the Federal Circuit’s en banc decision in Sunpreme Inc. v. United States stands head-and-shoulders above the rest in terms of its importance and potential impact.

I’m excited to announce that this week FedCircuitBlog will host its second online symposium. The symposium will be a Year in Review, reviewing the work of the Federal Circuit in 2020 in various areas of the court’s jurisdiction: appeals involving international trade, patents, money damages claims against the federal government, federal employment law, and veterans’ benefits. We will welcome guest blog posts from leading professors and practitioners in these subject matter areas. Here, however, I first provide a brief overview of the court’s activity this past year–a year markedly different as a result of the COVID-19 pandemic, but a year in which the court continued its work hearing appeals and deciding cases in the areas of its jurisdiction.