FedCircuitBlog

Here is an update on recent en banc activity at the Federal Circuit in patent cases. The court received a new petition raising questions related to the proper interpretation of a forum selection clause and whether it impacts inter partes review. The court also invited a response and received three new amicus briefs in a case that raised a question related to the written description requirement. Finally, the court denied three petitions raising questions relating to the Patent Trial and Appeal Board’s analysis of the non-obviousness requirement, inter partes review estoppel, and the Federal Circuit’s reversal of a judgment in an inter partes review proceeding based on a teaching away finding. Here are the details.

This morning the Federal Circuit issued two nonprecedential opinions. The first comes in a patent case appealed from the District of Delaware. The second comes in a government contract case appealed from the Court of Federal Claims. The Federal Circuit also issued a nonprecedential order denying a petition for a writ of habeas corpus, a writ of mandamus, and a writ of quo warranto. Finally, the court issued three Rule 36 judgments. Here are the introductions to the opinions and orders 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 detailing how “[t]he Federal Circuit and Judge Albright have been in a constant state of tension over case transfers”;
• another article discussing how Judge Albright was recently “[c]ritical of recent Federal Circuit decisions”; and
• a third article discussing how “Judge Leonard P. Stark will bring a wealth of patent experience to the Federal Circuit.”

This morning the Federal Circuit issued a nonprecedential opinion reviewing a judgment of the District of Delaware holding patent claims invalid for lack of eligibility. The Federal Circuit also issued four nonprecedential orders. The first order dismisses a petition for a writ of mandamus after notification by the parties that mandamus relief is no longer necessary. The other three orders all grant petitions for writs of mandamus directing the the Western District of Texas to transfer patent cases to the Northern District of California. Finally, the court issued two Rule 36 judgments. Here are the introductions to the opinions and orders and links to the Rule 36 judgments.

Today we highlight four recent papers related to the Federal Circuit. The first, co-authored by retired Federal Circuit Chief Judge Paul Michel, focuses on the transformation of the U.S. patent system over the past fifteen years. The second analyzes the justiciability of litigation upon the invalidation of patents. The third reviews the Federal Circuit’s patent eligibility decisions in the seven years following the Supreme Court’s decision in Alice v. CLS Bank. The fourth examines the availability of Federal Circuit decisions. Here are more details on these papers.

Last Friday, the court heard oral argument in Brown v. United States, a tax case. We have been following it because it attracted an amicus brief. On appeal, the Browns ask the Federal Circuit to overrule the holding of the Court of Federal Claims that it did not have subject matter jurisdiction because the Browns did not attach a power of attorney to amended income tax returns filed by their agent with the Internal Revenue Service. The United States argues “[t]he Browns’ refund claims admittedly violated the taxpayer signature and verification requirements,” and the United States maintains this means “the Browns’ refund claims were not ‘duly filed’ with the IRS before the Browns sued.” The arguments attracted an amicus brief from the Center of Taxpayer Rights in support of the Browns. Judges Lourie, Dyk, and Stoll heard Friday’s argument. This is our argument recap.

This morning the Federal Circuit issued two precedential opinions. The first opinion comes in a patent case appealed from the Northern District of California, and it addresses the propriety of a court determining whether to compel arbitration between parties. The second opinion comes in a trademark case appealed from the Trademark Trial and Appeal Board, and it addresses the law governing an allegation of fraud in the registration of a trademark. 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 Judge Albright “said the Federal Circuit’s rulings had ‘muddled what facts are relevant’ in determining which court can hear the case faster”;
• a blog post addressing the Federal Circuit’s conclusion that “[a] design [patent] claim is limited to the article of manufacture identified in the claim”;
• another article detailing how in an opposition to a trademark “an opposer cannot show standing by merely showing the registrant competes with the opposer and receives a benefit from an unlawful trademark”; and
• another post explaining how “[t]he Federal Circuit brought some measure of clarity to the question [of proper venue] recently when it affirmed a District Court dismissal of an ANDA action on improper venue grounds.”

This past week, the court heard oral argument in In re Elster, an appeal from the Trademark Trial and Appeal Board. We have been following this case because it attracted an amicus brief. On appeal, Elster argues a refusal of his trademark registration based on section 2(c) the Lanham Act violates of the Constitution’s First Amendment. Section 2(c) recites that “[n]o trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it . . . [c]onsists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent . . . .” The United States argues that section 2(c) is constitutionally legal and applied correctly in this case. The amicus brief in this case was filed by Matthew Handel, an individual who says he has trademark applications similar to Elster. Judges Dyk, Taranto, and Chen heard the argument. This is our argument recap.

The Federal Circuit did not release any opinions today on its website given the Veterans Day federal holiday.