FedCircuitBlog

This post summarizes recent activity at the Supreme Court in cases decided by the Federal Circuit.

• The Supreme Court received four new petitions this week in (1) RPM International Inc. v. Stuart, (2) Whitserve LLC v. Donuts Inc., (3) Bozeman Financial LLC v. Federal Reserve Bank of Atlanta, and (4) Robles v. Wilkie.

Here are the details.

Guest post by Kevin B. Laurence and Matthew C. Phillips.

Stay jurisprudence from the Federal Circuit is a legacy of the Transitional Program for Covered Business Method (“CBM”) Review. Prior to the America Invents Act (AIA), the Federal Circuit rarely heard appeals related to stay motions because of the final-judgment rule.[1] However, under the CBM statute, a party to a CBM review was allowed to take an immediate interlocutory appeal from a district court’s decision regarding whether to stay an infringement case pending a CBM review.[2] The CBM statute was intended to increase the predictability of context-dependent stay decisions and to increase the grant rate of CBM-related stay motions. At the sunset of the eight-year CBM program on September 16, 2020, we reflect on the CBM stay jurisprudence developed around this statute.

The Federal Circuit issued a nonprecedential order in a veterans case late yesterday. This morning, the court issued a pair of Rule 36 judgments. Here is the text of the order and links to the Rule 36 judgments.

Here is an update on recent en banc activity at the Federal Circuit. In one of the two cases in which the court has granted en banc hearings, the National Organization of Veterans Advocates filed a reply brief. In cases with pending petitions for en banc consideration, highlights include responses to two petitions raising issues related to patent eligibility and inventorship, and a voluntary withdrawal of a petition related to venue.

Guest post by Ron D. Katznelson, Ph.D.

The Transitional Program for Covered Business Method Patent Review (CBMR) was enacted in § 18 of the America Invents Act (AIA) for reviewing issued Covered Business Method (CBM) patents – patents that claim “a method or corresponding apparatus for performing data processing or other operations used in the practice, administration, or management of a financial product or service.”[1] The AIA also set a sunset expiration date for CBMR on September 16, 2020.[2] For the reasons explained below, CBMR should expire this week as intended and enacted in the AIA. As further explained below, those who wish to challenge CBM patents after that date, can effectively do so using any of the three alternative administrative proceedings at the US Patent & Trademark Office (PTO) that remain available with no sunset expiration, or by federal court action.

This morning the Federal Circuit issued one precedential opinion in an appeal from an arbitrator’s decision in an employment case, one nonprecedential opinion in a patent case, and one nonprecedential order granting a petition for a writ of mandamus. Here are the introductions to the opinions and the text from the order.

Guest post by Saurabh Vishnubhakat

As the Transitional Program for Covered Business Method (“CBM”) Review reaches its sunset date, it is useful to consider the design and implementation of this program and what lessons can be drawn from its eight-year run. Of particular interest are two unusual aspects of CBM review that have interacted with each other in instructive ways.

• Federal Circuit’s O’Malley: Supreme Court doesn’t have stomach for another 101 case – Federal Circuit Judge Kathleen O’Malley recently expressed concern over whether the Supreme Court will address patentable subject matter.
• An Argument for Mandatory Production of Limited Secondary Consideration Evidence by Petitioners in Inter Partes Reviews – Kristin Doyle advocates for the Patent Trial and Appeals Board to adopt the same approach to secondary consideration evidence as the Federal Circuit
• What We Learned About Biologics on Summer Vacation – Broad claim construction, licensing, and antitrust concerns have been among the trends for cases involving biologics at the Federal Circuit.

Here’s the latest.

In this article, we highlight two scholarly articles related to the Federal Circuit.

• Eli Lilly v. Teva: Generic Companies Infringe under Akamai IV in Case of Divided Infringement by Christopher M. Holman
• Design Patent Law’s Identity Crisis by Peter S. Menell and Ella Corren

Here are the details.

This morning, the Federal Circuit issued a pair of Rule 36 judgments. Here is a list with links to the orders.