FedCircuitBlog

Here is an update on recent en banc activity at the Federal Circuit in patent cases. Since our last update, the Federal Circuit granted en banc rehearing to address a question concerning standing at the Court of Federal Claims to allege a violation of a statute or regulation in connection with a procurement or proposed procurement of a government contract. Additionally, an amicus brief has been filed in a pending en banc patent case raising a question concerning a district court’s responsibility to scrutinize a patentee’s reliance on supposedly comparable licenses. There are no updates regarding pending petitions. Here are the details.

This morning the Federal Circuit released one nonprecedential order that dismissed a case. Here is a link to the dismissal.

Here is an update on activity at the Supreme Court in cases decided by the Federal Circuit. With respect to granted cases, oral argument in Feliciano v. Department of Transportation will take place on December 9. Since our last update, a waiver of the right to respond was filed in a pro se case, two new briefs in opposition were filed in a patent case and a veterans case, and seven amicus briefs were filed in two patent cases and a veterans case. In addition, the Court denied the petition in a patent case raising questions related to Judge Newman’s removal from hearing appeals, Federal Rule of Civil Procedure 12(d), and eligibility. Here are the details.

Today the Federal Circuit released one nonprecedential opinion. It affirms a decision of the Court of Federal Claims, which dismissed a complaint, denied a request to amend the complaint, and denied a request to transfer. Here is the introduction to the opinion.

On December 9, the Supreme Court will hear oral argument in Feliciano v. Department of Transportation, a case originally decided by the Merit Systems Protection Board. The Supreme Court granted review to consider whether “a federal civilian employee called or ordered to active duty under a provision of law during a national emergency is entitled to differential pay even if the duty is not directly connected to the national emergency.” The Federal Circuit held that, “[b]ecause Mr. Feliciano’s service does not qualify as an active duty contingency operation, as required by 5 U.S.C. § 5538(a), the Board properly denied differential pay.” This is our argument preview.

As we reported earlier today, late Friday afternoon the Federal Circuit released a precedential order granting a petition for rehearing en banc in a government contract case. Today the Federal Circuit also released two nonprecedential orders, both of which were dismissals. Here is the introduction to the precedential order and links to the dismissals.

Late Friday the Federal Circuit granted a petition for en banc rehearing in Percipient.AI, Inc. v. United States, a government contract case originally decided by the Court of Federal Claims. The question presented relates to standing under 28 U.S.C. § 1491(b)(1). That statutory provision grants the Court of Federal Claims “jurisdiction to render judgment on an action by an interested party objecting . . . to a proposed award or the award of a contract or any alleged violation of statute or regulation in connection with a procurement or a proposed procurement.” The question presented is: “Who can be an interested party objecting to any alleged violation of statute or regulation in connection with a procurement or a proposed procurement under 28 U.S.C. § 1491(b)(1)?” Here is the full text of Friday’s order granting en banc rehearing. We will report more on this case later this week.

Here is an update on activity in cases pending before panels of the Federal Circuit where the case involves at least one amicus brief. We keep track of these cases in the “Other Cases” section of our blog. Today with respect to these cases we highlight two new opinions. One comes in a government contract case raising questions related to breach of contract, breach of the implied covenant of good faith and fair dealing, and recovery of certain termination-for-convenience damages. The other comes in a patent case raising questions related the propriety of an antisuit injunction. The other update is new briefing in another patent case raising questions related to whether the district court erred in granting summary judgment of patent eligibility, noninfringement, and denial of damages. Here are the details.

Today the Federal Circuit released two nonprecedential opinions in cases appealed from the Patent Trial and Appeal Board and the Merit Systems Protection Board. The court also released three nonprecedential orders dismissing appeals. Here are the introductions to the opinions and links to the dismissals.

Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today’s report highlights:

• a press release noting that the “Senate Judiciary Committee approved the Promoting and Respecting Economically Vital American Innovation Leadership (PREVAIL) Act (S. 2220) by a roll call vote of 11-10″;
• an article considering “what the IP community can expect from a second Trump presidency”; and
• an article discussing a U.S. Patent and Trademark Office internal memo that “banned the use of generative artificial intelligence for any purpose last year.”