FedCircuitBlog

This morning the Federal Circuit granted a petition for en banc rehearing filed by Google in EcoFactor, Inc. v. Google LLC, a patent case appealed after a jury trial in the Western District of Texas. Google asked the court to consider whether the district court erred in “failing to rigorously scrutinize a patentee’s reliance on supposedly comparable licenses” resulting in an “artificially inflated damages award that is divorced from market realities and devoid of connection to the patent’s incremental improvement to the art.” Here are the details.

This morning the Federal Circuit released one nonprecedential order. The order is a dismissal, which we link here.

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

• a blog post reporting how the markup of three proposed bills to reform patent law was postponed from last Thursday to this Thursday; and
• an article discussing the announcement of a “new inventors’ rights group” called the “Inventors Defense Alliance,” which aims to help “startups, small businesses, and entrepreneurs defend their intellectual property rights and access capital.”

This morning the Federal Circuit released two nonprecedential opinions and one nonprecedential order. Both nonprecedential opinions come in patent cases appealing decisions of the Patent Trail and Appeal Board. The nonprecedential order is a dismissal. Here are the introductions to the opinions and a link to the dismissal.

The Federal Circuit issued its opinion in August in Celanese International Corp. v. International Trade Commission, a patent case that attracted an amicus brief. In this case, the Federal Circuit reviewed a determination by the International Trade Commission that Celanese’s asserted patent claims were invalid under the on-sale bar because Celanese sold products made using a patented process more than one year before the effective filing dates of the asserted patents. In an opinion authored by Judge Reyna and joined by Judges Mayer and Cunningham, the Federal Circuit affirmed the ITC’s judgment. According to the panel, “Celanese fail[ed] to show the [America Invents Act] overturned settled precedent that pre-critical date sales of products made using a secret process preclude the patentability of that process.” This is our opinion summary.

This morning the Federal Circuit released two nonprecedential orders. Both are dismissals, which we link below.

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

• an article highlighting how the Federal Circuit recently “vacated a decision axing a[] . . . drug patent based on an argument not presented at trial and chastised the federal judge in Delaware who issued it”;
• an article discussing how the Federal Circuit “reverse[d], in whole or in part, the PTAB only about 20% of the time” in July;
• an article explaining that in a recent opinion, the Federal Circuit “affirmed a district court’s decision to grant a motion to dismiss a patent infringement case . . . due to patent ineligibility” of “image tagging patents”; and
• a blog post explaining that the “Federal Circuit is set to hear oral arguments in . . . a case that could significantly impact Orange Book patent listing (and delisting) practices under the Hatch-Waxman Act.”

This morning the Federal Circuit released one nonprecedential opinion and six nonprecedential orders. The nonprecedential opinion affirms a final decision of the Merit Systems Protection Board, which denied a request for corrective action under the Whistleblower Protection Act. The nonprecedential orders are all dismissals. Here is the introduction to the opinion and links to the dismissals.

Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. With respect to granted cases, there is no new activity to report. With respect to petitions, two new petitions were filed raising questions related to injunctive relief related to generic drugs and appellate procedure, new waivers of the right to respond were filed in a patent case and a pro se case, and one new reply in support of a petition was filed in a patent case raising questions regarding inter partes review. Here are the details.

As we previously reported, the Supreme Court in June issued its opinion in Vidal v. Elster, a trademark case that attracted eight amicus briefs. In this case, the Court reviewed the Federal Circuit’s conclusion that the Lanham Act’s prohibition on registering marks that consist of or comprise a name identifying a particular living individual without that person’s consent violates the First Amendment. The Supreme Court disagreed. In an opinion authored by Justice Thomas, the Court decided that history and tradition establish that the provision in question does not violate the First Amendment. Notably, Justices Kavanaugh and Barrett both concurred in part and Justice Sotomayor concurred only in the judgment. This is our opinion summary.