FedCircuitBlog

This morning the Federal Circuit released three nonprecedential opinions. Two come in pro se cases and the other is a patent case on appeal from the Patent Trial and Appeal Board. Here are the introductions to the opinions.

Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. Notably, on Friday the Supreme Court granted certiorari in a veterans case. In addition, one new petition was filed in a patent case presenting questions related to motions under Federal Rule of Appellate Procedure 60, the judicial exceptions to patent eligibility, and the application of Federal Rule of Civil Procedure 56 in patent cases; the court received waivers of the right to respond to petitions in one patent case and two pro se cases; an amicus brief was filed in a case presenting a question related to the use of Federal Circuit Rule 36 in appeals from decisions of the Patent Trial and Appeal Board; and the Court denied a petition in a patent case. Here are the details.

Last week the Federal Circuit issued its opinion in Lynk Labs, Inc. v. Samsung Electronics Co., a patent case that we have been watching because it attracted four amicus briefs. In this case, the Federal Circuit reviewed an appeal from a decision of the Patent Trial and Appeal Board in an inter partes review proceeding that certain patent claims are unpatentable in light of prior art. The oral argument focused on “whether the Board erred in determining that . . . a published and later abandoned U.S. patent application . . . can be applied in an IPR as a ‘printed publication’ under 35 U.S.C. § 311(b).” That statutory subsection says that “a petitioner in an inter partes review may request to cancel as unpatentable 1 or more claims of a patent . . . only on the basis of prior art consisting of patents or printed publications.” What the appellant and one amicus brief argued is that a patent application that never issues as a patent is not a patent nor does it qualify as a printed publication when its publication date is after the effective filing date of the patent subject to the inter partes review proceeding. The Federal Circuit, however, in an opinion authored by Judge Prost and joined by Judge Lourie and Judge Stark, affirmed the Board. It found no error in the Board’s unpatentability determinations using, as the relevant date for prior art purposes, the abandoned patent application’s filing date. This is our opinion summary.

This morning the Federal Circuit released two nonprecedential opinions and two nonprecedential orders. Of the nonprecedential opinions, one is a pro se veterans case and the other is a patent case on appeal from the Patent Trial and Appeal Board. Both nonprecedential orders dismiss cases. Here are the introductions to the opinions and links to the orders.

Here is an update on recent en banc activity at the Federal Circuit in patent cases. A response brief was filed in a pending en banc case concerning a district court’s responsibility to scrutinize a patentee’s reliance on supposedly comparable licenses. Petitioners also filed two new petitions, one seeking an emergency injunction and one presenting a question regarding vicarious liability for direct infringement. Here are the highlights.

This morning the Federal Circuit released a nonprecedential opinion in a patent case on appeal from the Patent Trial and Appeal Board. The court affirmed the Board’s invalidity determination. Here is the introduction to the opinion.

This month, the Federal Circuit heard oral argument Marmen Inc. v. United States, a trade case that attracted an amicus brief. In this case, the Federal Circuit is reviewing a judgment of the Court of International Trade, which sustained a final antidumping duty determination that assigned a dumping margin on Marmen, a Canadian wind tower producer. Judges Prost, Taranto, and Chen heard oral argument. This is our argument recap.

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

• a blog post suggesting reasons for the ”the prevalence of filing errors and subsequent correction requirements in Federal Circuit appeals–even among the nation’s most sophisticated appellate practitioners”;
• a report covering how Chief Judge Moore “told the Court of Appeals for the D.C. Circuit on Thursday that Judge Pauline Newman’s appeal of her effective removal from the [Federal Circuit] should fail because her claims do not meet the ‘exceptional circumstances’ warranted for transfer to another circuit and her constitutional challenges are precluded”;
• an article asking whether the Supreme Court decision in Loper Bright Enterprises v. Raimondo will “chip away at Federal Circuit Rule 36 summary affirmances” or even “offer a path for [Patent Trial and Appeal Board] appellants to circumvent Rule 36 altogether”; and
• a piece highlighting how the Supreme Court granted certiorari Friday to “review whether the government need only pay six years of unpaid combat-related special compensation if a veteran files a claim.”

On Friday, the Supreme Court granted the petition for a writ of certiorari presented in Soto v. United States, a veterans case. The Supreme Court indicated it will consider the following question: “Given the Federal Circuit’s holding that a claim for compensation under 10 U.S.C. § 1413a is a claim ‘involving . . . retired pay’ under 31 U.S.C. § 3702(a)(l)(A), does 10 U.S.C. § 1413a provide a settlement mechanism that displaces the default procedures and limitations set forth in the Barring Act?” What follows the break is the relevant background and question presented by Soto’s counsel.

Yesterday the Federal Circuit released one precedential opinion, two nonprecedential opinions, and six nonprecedential orders. The precedential opinion comes in an appeal from the Merit Systems Protection Board. Both nonprecedential opinions come in appeals from the Merit Systems Protection Board as well, with one of them appealed pro se. Of the nonprecedential orders, one grants a petition to appeal a case from the Court of Federal Claims, one denies a similar petition, two deny petitions for writs of mandamus, and two dismiss appeals. Here are the introductions to the opinion and all of the orders other than the dismissals, which are simply linked.