FedCircuitBlog

Here is an update on recent en banc activity at the Federal Circuit. Three new petitions were filed, one in a patent case raising a question related to obviousness; another in a patent case raising a question related to anticipation; and another in a pro se case. As for previously-filed petitions, this week’s highlight is a response to a petition in a patent case raising questions related to claim construction and infringement in the context of compliance with an industry standard. Here are the details.

This morning the Federal Circuit issued two nonprecedential opinions: one in a patent case and one in a government contract case. The Federal Circuit also issued two separate nonprecedential orders denying petitions for writs of mandamus. Finally, the Federal Circuit issued one Rule 36 judgment. Here are the introductions to the opinions, text from the orders, and a link to the Rule 36 judgment.

Yesterday, the Federal Circuit heard oral argument in Veterans4You LLC v. United States, a case we have been following because it attracted an amicus brief. In this case, Veterans4You asserts that the Department of Veterans Affairs wrongly invoked the “printing mandate” in 44 U.S.C. § 501 to route a VA procurement through the Government Publishing Office, which in turn violated the “Rule of Two” statutory preference for veteran-owned small businesses. This is our argument recap.

• Three Damages Questions for the Supreme Court – Cochlear Corp. petitioned the Supreme Court to review the Federal Circuit’s damages decision and recently received an amicus brief in support.
• Threshold Issues, Misdirected Lawyering, and a Frustrated Federal Circuit – Earlier this October, the Federal Circuit remanded AntennaSys, Inc., v. AQYR Technologies, Inc. to resolve the claim construction issues left undecided by the lower court and expressing their disdain towards unhelpful arguments from both parties.
• Apple Hit With $503M Verdict In VirnetX Patent Retrial – After the Federal Circuit vacated the damages award, on remand, the lower court jury awarded similar damages against Apple.

Here’s the latest.

This morning, and no doubt related to the election tomorrow, the Federal Circuit issued a Notice of Modified Procedures for Nonelectronic Filing and Submissions. In the Notice, the court announced that, effective tomorrow morning and until further notice, the Clerk’s Office is suspending access to its night drop box as well as in-person paper filings and submissions in favor of filing through the U.S. Postal Service. Here is the text of the announcement and a link to the relevant administrative order.

The Federal Circuit did not publish any opinions or orders this morning.

This week the Federal Circuit will convene fifteen panels to consider about 64 cases. This month, as in the past several months, the court will hear all of its oral arguments telephonically given the coronavirus pandemic. Of the 64 cases, the court will hear oral arguments in 42. Of these argued cases, four attracted amicus briefs: one in a government contract case and three in veterans cases. Here’s what you need to know about these cases.

• Wrong case, right result, Fed Circuit holds in trademark win for Sprouts Farmers Market – The Federal Circuit concluded that the TTAB correctly determined that a challenger to Corcamore, LLC’s registration for the mark SPROUTS had standing, despite the fact that the TTAB applied the incorrect legal standard.
• USPTO Sees ‘Unprecedented Growth’ In AI Patent Apps – On Tuesday, the U.S. Patent and Trademark Office published a report recognizing the surge of AI-related patent applications.
• Trademark Office Issues Guidance for Post-Booking.com World – Although the Supreme Court rejected the USPTO’s bright-line rule against generic.com, applicants still have to establish that the mark holds distinct meaning to consumers.

Here’s the latest.

This morning, the Federal Circuit issued a nonprecedential order dismissing appeals and denying a petition for a writ of mandamus in a case decided by the Patent Trial and Appeal Board. Here is the introduction of the order.

The fourth case being argued next week at the Federal Circuit that attracted amicus briefs is Euzebio v. Wilkie. In this case, the court will consider three issues related to veterans law: (1) whether “[t]he Veterans Court’s ‘direct relationship’ requirement is an erroneous legal standard for determining what facts are before the Board because it excludes relevant matters that are known or should be known to the Board;” (2) whether “the Veterans Court erred in holding that it lacks the legal authority to look at relevant facts known to the agency for purposes of reviewing the Board’s decision;” and (3) whether “the Veterans Court misinterpreted the scope of VA’s duty to assist when it affirmed VA’s failure to develop the record with relevant facts concededly known to the agency.” This is our argument preview.