FedCircuitBlog

Here is an update on recent en banc activity at the Federal Circuit in patent cases. The court received two new petitions raising questions related to claim construction; a new response to a petition raising questions related to an alleged conflict of interest and summary affirmances; and a new amicus brief in support of a petition raising a question related to the written description requirement. Finally the court denied a petition for rehearing en banc raising questions related to inducement of infringement and an evidentiary rule. Here are the details.

This morning the Federal Circuit issued two precedential opinions in related cases appealed from the Court of Federal Claims. The first opinion addresses standing to bring takings claims against the Federal Housing Finance Agency. The second opinion also addresses standing but also subject matter jurisdiction. The Federal Circuit also issued a nonprecedential opinion in an employment case appealed from the Merit Systems Protection Board. Finally, the court issued an erratum. Here are the introductions to the opinions and a link to the erratum.

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

• an article announcing the release of a report on “the developments shaping patent law”;
• another article discussing how the Federal Circuit recently affirmed a “district court finding that dual-access lock patents are invalid” as ineligible; and
• yet another article focused on a recent Federal Circuit ruling in a contract dispute.

Given that today is Presidents’ Day, the Federal Circuit did not release any opinions or orders this morning on its website.

Guest Post by Greg Reilly

For over a decade, patent litigation has been surprisingly concentrated in a single federal district court. At one time, almost half of the nation’s patent litigation occurred in small towns in eastern Texas.1 Now, 20% of patent litigation occurs before a single judge based in Waco, Texas.2 This concentration of patent litigation is not the result of the inherent characteristics of these districts but instead of the affirmative efforts of particular judges to attract patent cases to their courthouses.3 Scholarly commentary of this forum selling and patent litigation concentration, including by myself, has been largely critical.4 The primary objection is that the districts and judges competing for patent litigation improperly skew procedures in favor of the patentees who make the forum choice.5

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.