FedCircuitBlog

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.

This morning the Federal Circuit issued a nonprecedential opinion in an employment case appealed from the Merit Systems Protection Board. The opinion addresses issues related to the jurisdiction of the MSPB. The court also issued four Rule 36 judgments. Here is the introduction to the opinion and links to the Rule 36 judgments.  

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 “[t]he U.S. Senate confirmed Judge Leonard Stark to the Federal Circuit, the nation’s top patent court”;
• another article similarly discussing how “Judge Leonard Philip Stark was confirmed by the U.S. Senate yesterday to be the next judge on the U.S. Court of Appeals for the Federal Circuit, replacing Judge Kathleen O’Malley”;
• an article discussing how “Teva struck out . . . in its effort to convince a U.S. appeals court to rehear its arguments for undoing a $235 million verdict for GlaxoSmithKline”; and
• yet another article explaining how recently the “Federal Circuit [effectively] clamp[ed] down on post IPR invalidity arguments.”

Last Wednesday, the court heard oral argument in Zaxcom, Inc. v. Lectrosonics, Inc., an appeal by Zaxcom from an adverse decision by the Patent Trial and Appeal Board in an inter partes review proceeding initiated by Lectrosonics. We have been following the case because it attracted two amicus briefs, one from retired Federal Circuit Judge Paul R. Michel and one from U.S. Inventor, Inc. On appeal, Zaxcom argues the PTAB incorrectly construed certain claims, incorrectly found certain claim elements in the prior art, and erred in its analysis of secondary considerations of non-obviousness. Lectrosonics cross-appeals, arguing the Board incorrectly found substitute claims to be patentable. Judges Lourie, Schall, Taranto heard Wednesday’s argument. This is our argument recap.

This morning the Federal Circuit issued two nonprecedential opinions. The first comes in a case appealed from the Court of Federal Claims and addresses issues related to the jurisdiction of the Court of Federal Claims and the Federal Circuit. The second comes in a patent case appealed from the Eastern District of New York and addresses issues related to eligible subject matter. Here are the introductions to the opinions.

Guest Post by J. Jonas Anderson

Patent litigation is highly concentrated before a handful of district court judges. Judge Alan Albright of the Western District of Texas is the latest high profile “patent judge,” receiving over 20% of the patent cases nationwide in 2020 and on track to surpass that figure in 2021.1 But, he is not the first judge to have such a heavy patent caseload: Judge Gilstrap of the Eastern District of Texas received northward of 40% of all U.S. patent cases as recently as 2016;2 and a number of judges in the district of Delaware consistently receive a very large number of patent cases.3 While all district court judges are generalists, various judges, including Judge Albright and Judge Gilstrap have used procedural mechanisms and their courts’ assignment practices to become de facto specialists.4 Judge Albright now receives more patent cases per year (he’s on track for 926 this year) than the amount of patent appeals heard by the entire Federal Circuit (around 835 appeals).5 

This morning the Federal Circuit issued a precedential opinion in a patent case appealed from the Patent Trial and Appeal Board. The opinion addresses issues related to estoppel as a result of inter partes review. The court also issued two nonprecedential opinions in a patent and employment case, and a nonprecedential order denying a petition for en banc rehearing in a patent case. Notably, with respect to the order, Chief Judge Moore wrote a concurring opinion joined by Judges Newman, O’Malley, Taranto, and Chen, while Judge Prost wrote a dissenting opinion joined by Judges Dyk and Reyna. Finally, the court issued three nonprecedential orders denying and dismissing petitions for writs of mandamus and two Rule 36 judgments. Here are the introductions to the opinions and orders.

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

• a blog post discussing how far “the scope of [inter partes review] estoppel expands”;
• another blog post commenting on “[t]he Federal Circuit’s analysis of comparable licenses” for damages purposes in patent cases; and
• an article explaining “mandamus and the battle over venue in modern America.”

Last Thursday the Federal Circuit granted en banc review and vacated a prior panel decision in Rudisill v. McDonough, a veterans case. According to last week’s order, the en banc court will consider the question of a veteran’s statutory entitlement to education benefits under the Montgomery GI Bill and the Post-9/11 GI Bill, and in particular what the correct entitlement period is when considering both bills and multiple qualifying periods of service. Here are the details.