FedCircuitBlog

This morning the Federal Circuit released a notice of amendments to the court’s Internal Operating Procedures. Notably, the amendments delete the indication that copies of opinions will be circulated to the court’s “senior technical assistant” who, “if requested . . . shall provide information on potential conflicts between the panel-approved opinion and any other prior opinions of the court or other relevant precedents.” Beyond that amendment, several other amendments relate to the ability of panels to withdraw and recirculate altered opinions. The amendments also make clear that panel reconsideration of an opinion withdraws any pending poll for rehearing en banc. Here is the text of today’s announcement with links to redlined and clean copies of the IPOs.

This morning the Federal Circuit issued a precedential opinion in a government contract case appealed from the Court of Federal Claims. The court also issued five nonprecedential opinions. Two came in patent cases appealed from the Patent Trial and Appeal Board. Two came in veterans cases appealed from the Court of Appeals for Veterans Claims. The last came in a government contract case appealed from the Armed Services Board of Contract Appeals. Here are the introductions to the opinions.

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

• an article discussing how the “Federal Circuit h[eld] [that a] pre-critical date letter is [a] [c]ommercial offer for sale, triggering on-sale bar”;
• a blog post asserting that the “Federal Circuit needs to clarify that CalTech Estoppel applies only to claims challenged via [inter partes review]”;
• an article noting how “in-person arguments return to D.C.’s Federal Circuit as Omicron fades”; and
• another article announcing the “2022 IP Outlook Report: the developments shaping trademark law.”

The Federal Circuit did not release any opinions or orders this morning on its website.

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. As for still-pending petitions, three new petitions were filed: one in a patent case raising questions related to eligible subject matter and two filed by pro se petitioners. Waivers of right to respond were filed in two cases: the patent case already mentioned raising questions related to eligible subject matter and another patent case also concerning eligibility. Finally, a brief in opposition was filed in a patent case that raises a question regarding the appealability of a discretionary denial of inter partes review. Here are the details.

Last week, the Federal Circuit held an en banc session to hear oral argument in Taylor v. McDonough. In this case, the court is considering whether equitable estoppel may be used against the government with respect to establishing the effective date of awards of veterans’ benefits. This is our argument recap.

This morning the Federal Circuit issued a precedential opinion in an employment case appealed from the Merit Systems Protection Board. The court also released two nonprecedential opinions. The first comes in a veterans case appealed from the Court of Appeals for Veterans Claims. The second comes in a case appealed from the Court of Federal Claims and addresses issues related to spoliation of evidence. Finally, the Federal Circuit issued a Rule 36 judgment. Here are the introductions to the opinions and a link to the Rule 36 judgment.

Here is an update on recent en banc activity at the Federal Circuit. Recently the Federal Circuit granted en banc review in one veterans case, and last week the en banc court heard oral argument in another veterans case. As for petitions for en banc review in patent cases, the court invited a response to a petition raising a question related to claim construction. The court also received three new responses to petitions raising questions related to the Appointments Clause, claim construction, and the written description requirement. Finally, the court denied a petition raising questions related to the inducement doctrine’s interaction with the Hatch-Waxman Amendments. Here are the details.

Guest Post by Megan M. La Belle†

Forum shopping in patent cases is not a new phenomenon. To be sure, the primary reasons Congress established the U.S. Court of Appeals for the Federal Circuit in 1982 were to increase uniformity in patent doctrine and reduce forum shopping.1 Instead of eliminating forum shopping, however, the creation of the Federal Circuit merely shifted plaintiffs’ focus from appellate courts to district courts when looking for a friendly forum to pursue patent infringement suits.2

This morning the Federal Circuit released a “Notice of Resumption of In-Person Arguments for the March 2022 Session.” This announcement follows a previous notice indicating that all arguments for the February session would be conducted via video conference. In short, in March the court is resuming in-person arguments, limiting attendance, and adhering to its revised protocols for these arguments. Notably, the court has not made it clear whether in-person arguments will continue beyond the March session. Here is the text of today’s announcement.