FedCircuitBlog

Here is an update on recent en banc activity at the Federal Circuit. Highlights include two new petitions for rehearing in patent cases presenting questions related to secondary considerations of non-obviousness and inconsistency between Board and district court claim constructions, along with a denial of a petition in another patent case presenting a question related to eligibility. Here are the details.

This morning, the Federal Circuit released two nonprecedential opinions, one nonprecedential order, and four Rule 36 summary affirmances. Both opinions address jurisdictional issues, with one affirming a Merit Systems Protection Board dismissal for lack of jurisdiction and another dismissing an appeal from the Court of Appeals for Veterans Claims for lack of jurisdiction. The order grants a motion to withdraw a petition. Here are the introductions to the opinions and links to the withdrawal and summary affirmances.

Earlier this year the Federal Circuit issued its opinion in Sun Pharmaceutical Industries, Inc. v. Incyte Corporation, a patent case we have been following because it attracted amicus briefs. In this case, the Federal Circuit reviewed a judgment of the Patent Trial and Appeal Board invalidating Sun’s patent claims in an inter partes review proceeding for failure to meet the non-obviousness requirement. In an opinion by Judge Stark, joined by Judges Linn and Hughes, the Federal Circuit affirmed the PTAB’s judgment. In particular, the court held that the Board had “substantial evidence to conclude that a person of ordinary skill would have reasonable expectation” of success in modifying compounds as directed in Sun’s patent claims.

This morning, the Federal Circuit provided notice on its website of increased fees taking effect on December 1. The court says the new fees reflect inflationary increases to various miscellaneous court fees and additional increases to local fees. Here is the full text of the announcement.

This morning, the Federal Circuit released one precedential opinion, one nonprecedential opinion, and one Rule 36 summary affirmance. The precedential opinion, which attracted one amicus brief, addresses two issues in a case appealed from the Court of International Trade: the President’s authority to modify safeguard measures in a trade-restrictive manner and the appropriate procedures under the Trade Act for doing so. The nonprecedential opinion addresses an appeal from a judgment of the Trademark Trial and Appeal Board affirming an examining attorney’s refusal to register a mark. Here are the introductions to the opinions and a link to the summary affirmance.

This past Wednesday, the Supreme Court heard oral argument in Rudisill v. McDonough, a veterans case regarding educational benefits. In this case, the Supreme Court is considering whether “a veteran who has served two separate and distinct periods of qualifying service under the Montgomery GI Bill, . . .  and under the Post-9/11 GI Bill, . . . is entitled to receive a total of 48 months of education benefits as between both programs, without first exhausting the Montgomery benefit in order to obtain the more generous Post-9/11 benefit.” 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:

• an article discussing Judge Dyk’s “doubts . . . about . . . patents for non-caloric food sweeteners, suggesting the broad scope of the claims could cover thousands of unknown enzymes and might render the patent claims invalid”;
• an article exploring whether patent law’s “lead compound” rule “is in tension with other aspects of obviousness jurisprudence as set forth in decisions of the Federal Circuit itself”; and
• another article discussing the potential impact of a Fifth Circuit case on recent decisions by the Federal Circuit that “time to trial doesn’t matter much” in a motion to transfer venue.

Yesterday, the Federal Circuit released the following announcement on its website:

For Friday, November 10, 2023, the United States Court of Appeals for the Federal Circuit is closed in observance of the federal holiday, pursuant to Federal Rule of Appellate Procedure 26(a)(6). Our offices will reopen on Monday, November 13, 2023.

Accordingly, the Federal Circuit did not release any opinions or orders today.

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

• a blog post providing an analysis of the oral arguments in Vidal v. Elster, which “involved a provision in the federal Lanham Act that directs the Patent and Trademark Office . . . to refuse to register any mark that identifies ‘a particular living individual’”;
• an article discussing “an opinion dealing largely with how much a patent owner can rely on information and belief-based allegations rather than facts”; and
• an article calling a district court opinion “a decision based on ignorance of patent law that must be overturned.”

This morning, the Federal Circuit released five nonprecedential opinions and two Rule 36 summary affirmances. Three of the opinions address appeals of decisions of the Merit Systems Protection Board. The fourth addresses a pro se appeal from a judgment of the Court of Appeals for Veterans Claims. The fifth affirms a decision of the Court of Federal Claims to dismiss a case for lack of subject matter jurisdiction. Here are the introductions to the opinions and links to the summary affirmances.