FedCircuitBlog

Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. With respect to granted petitions, as we noted last week the Supreme Court recently held held oral argument in one case decided by the Federal Circuit and issued an opinion in another. With respect to pending petitions, the Court granted two petitions, vacated the judgments, and remanded the cases in light of the Court’s holding in a case originally decided by the Merit Systems Protection Board. Also, a new petition was filed in a patent case raising a question related to the ability of a court of appeals to revive a waived argument; a brief in opposition and a reply brief were filed in another patent case raising questions related to patent eligibility and Federal Circuit Rule 36; and a brief in opposition was filed in yet another patent case raising questions concerning so-called skinny labels. Finally, the Court denied two petitions, one raising questions related to ripeness of takings claims and the other raising a question related to the on-sale bar to patentability. Here are the details.

Late last month, the Supreme Court heard oral argument in Soto v. United States, a case originally decided by the Federal Circuit. The Court granted review to consider whether a statutory provision governing Combat-Related Special Compensation, 10 U.S.C. § 1413a, provides a settlement mechanism that displaces the default procedures and limitations set forth in the Barring Act. According to the Federal Circuit, “the Barring Act applies to settlement claims” regarding Combat-Related Special Compensation. As for why, it indicated “the CRSC statute does not explicitly provide its own settlement mechanism.” It then held that “the six-year statute of limitations contained in the Barring Act applies to CRSC settlement claims.” Soto challenges these findings by arguing that the Barring Act does not apply to CRSC settlement claims. This is our argument recap.

On April 30, the Supreme Court issued its opinion in Feliciano v. Department of Transportation, a case originally decided by the Merit Systems Protection Board and then the Federal Circuit. In this case, the Supreme Court granted review to consider whether “a federal civilian employee called or ordered to active duty under a provision of law during a national emergency is entitled to differential pay even if the duty is not directly connected to the national emergency.” In a 5-4 decision, the Court held that a “federal civilian employee called to active duty pursuant to ‘any other provision of law . . . during a national emergency’ is entitled to differential pay without having to prove that his service was substantively connected in some particular way to some particular emergency.” Justice Gorsuch authored the majority opinion, which was joined by Chief Justice Roberts and Justices Sotomayor, Kavanaugh, and Barrett. Justice Thomas authored a dissenting opinion, which was joined by Justices Alito, Kagan, and Jackson. Here is our summary of the Court’s opinions.

Today, the Federal Circuit released two opinions in patent cases. In the first opinion, which is precedential, the Federal Circuit reverses a decision of the Patent Trial and Appeal Board not to hold any claims unpatentable and remands the case for further consideration. In the second opinion, which is nonprecedential, the Federal Circuit affirms another decision of the Patent Trial and Appeal Board to hold some claims not unpatentable and another claim unpatentable and vacates and remands its decision to hold other claims not unpatentable. 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 we highlight:

• an article describing how John Squires, “nominated by President Donald Trump to run the US Patent and Trademark Office,” was scheduled to appear at a confirmation hearing before the Senate Judiciary Committee on Wednesday of this week;
• a follow-up article detailing how during his confirmation hearing John Squires said the country’s patent system “is going in the wrong direction”;
• a blog post discussing “a significant development” for practice at the Patent Trial and Appeal Board; and
• a piece examining the impact of LKQ Corporation v. GM Global Technology Operations LLC, an en banc case that “threw out longstanding tests for determining if design patents are invalid as obvious.”

Late yesterday, the Federal Circuit released a precedential opinion in an en banc case appealed from the Western District of Texas. Notably, Judges Reyna and Stark concurred in part and dissented in part. Today, the Federal Circuit released a precedential opinion in a trademark case. The court also released three nonprecedential opinions affirming judgments, the first in a veterans case, the second in a patent case, and the third in an appeal from the Armed Services Board of Contract Appeals. The Federal Circuit also released one nonprecedential order dismissing an appeal. Here are the introductions to the opinions and a link to the dismissal.

Earlier this week, the Federal Circuit announced that on May 27 the court will launch a new caption generation utility for filers. The court explained that this feature “will allow parties and counsel associated with a case to easily generate the most up-to-date version of the case caption.” Here is the full text of the announcement.

This afternoon the Federal Circuit decided EcoFactor, Inc. v. Google LLC, an en banc patent case. In an opinion authored by Chief Judge Moore and joined by seven other judges, the court reversed a denial by the Western District of Texas of a motion for a new trial on damages. The Federal Circuit held the district court abused its discretion by failing to exclude expert testimony that prior licensees agreed to a particular royalty rate. Judges Reyna and Stark dissented in part. Here are the details.

Today, the Federal Circuit released a precedential opinion affirming a decision in a case appealed from the Trademark Trial and Appeal Board. The court also released two nonprecedential opinions in cases decided by the Merit Systems Protection Board. In the first nonprecedential opinion, the court affirmed the Board’s final decision. In the second nonprecedential opinion, the court reversed the Board’s final decision and remanded the case for further proceedings. 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 we highlight:

• a piece discussing how the Federal Circuit recently “said scientists Jennifer Doudna and Emmanuelle Charpentier will get another chance to show they ought to own the key patents on what many consider the defining biotechnology invention of the 21st century”;
• an article discussing how a panel of the D.C. Circuit “seemed skeptical” of Judge Newman’s argument “that a statute allowing courts to self-police instances of misconduct and disability is unconstitutional across the board”;
• a blog post criticizing a recent Federal Circuit decision that he says “appears to have unintentionally upended fundamental principles of [inter partes review] estoppel”; and
• a report that the Dana-Farber Cancer Institute and Memorial Sloan-Kettering Cancer Center filed an amicus brief with the Federal Circuit, urging the court to “review a decision rejecting Xencor’s application for an antibody patent.”