FedCircuitBlog

Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. With respect to the Supreme Court’s October 2021 term, since our last update the Court has not granted any new petitions. Two new petitions, however, have since been filed: one in a patent case concerning patent eligibility and one filed by a pro se petitioner. Additionally, Apple filed a reply in support of a petition raising a question related to standing in patent appeals. Finally, two waivers of right to respond to petitions were filed in patent cases. Here are the details.

Next week, in an en banc session, the Federal Circuit will hear arguments in Taylor v. McDonough, a veterans case. The court will consider whether equitable estoppel may be used against the government with respect to establishing the effective date of an award pursuant to 38 U.S.C. § 5110. In particular, the court will consider several related questions: (1) whether “granting Mr. Taylor’s claim of entitlement to an earlier effective date under the doctrine of equitable estoppel be contrary to statutory appropriations and thus barred by the Appropriations Clause;” (2) if equitable estoppel does not apply, whether Taylor has a claim for “denial of a constitutional right of access to [Veterans Affairs] processes for securing disability benefits for which he met the eligibility criteria;” and (3) if a right of access exists, whether the right of access was violated here and what the remedy is. This is our argument preview.

This morning the Federal Circuit issued a precedential opinion in a trademark case appealed from the Trademark Trial and Appeal Board. The opinion affirms the Board’s refusal to register a stylized form of “.SUCKS” as a trademark. The court also issued a nonprecedential opinion in a patent case appealed from the Patent Trial and Appeal Board. Here are the introductions to the opinions.  

Here is an update on recent en banc activity at the Federal Circuit in patent cases. The court received two new petitions raising questions related to the written description requirement and the standard of review for the grant or denial of a preliminary injunction. The court also invited a response to a petition raising a question related to the written description requirement. Here are the details.

Next week is argument week at the Federal Circuit, and one patent case being argued next week, Zaxcom, Inc. v. Lectrosonics, Inc., attracted amicus briefs. In this case, Zaxcom appeals an adverse decision by the Patent Trial and Appeal Board in an inter partes review proceeding brought by Lectrosonics. On appeal, Zaxcom argues the Patent Trial and Appeal Board incorrectly construed certain claims, incorrectly found certain claim elements in the prior art, and erred in its analysis of secondary considerations of non-obviousness. Lectrosonics cross-appeals, arguing the Board incorrectly found substitute claims to be patentable. The case attracted two amicus briefs, one from retired Federal Circuit Judge Paul R. Michel and one from U.S. Inventor, Inc. This is our argument preview.

This morning the Federal Circuit issued a precedential opinion in a patent case holding that applicant admitted prior art (AAPA) disclosed within a challenged patent is not “prior art” for the purposes of inter partes review. While the court noted that AAPA is not categorically excluded from inter partes review for all purposes, the court held is not “prior art consisting of patents or printed publications” under the relevant statutory provision. The court also issued a nonprecedential opinion in an employment case. 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’s report highlights:

• an article discussing how recently “the Federal Circuit denied a petition for mandamus relief from an order transferring a first-filed declaratory judgment action”;
• another article explaining how “AstraZeneca has urged the US Court of Appeals for the Federal Circuit to revisit a split panel decision”;
• another article detailing how a “Federal Circuit judge said Thursday the U.S. Supreme Court justices created ‘a trap for the unwary’ by keeping alive a doctrine barring inventors from challenging the validity of their own patents”; and
• yet another article assessing how the Federal Circuit recently “address[ed] [the] ‘abuse of authority’ standard under [federal] whistleblower law.”

Last Monday, the Federal Circuit issued its opinion in Cross v. Office of Personnel Management, a case we have been following because it attracted an amicus brief. The case was argued before Judges Moore, Schall, and Stoll. On appeal, Cross asked the Federal Circuit to reverse a decision of the Merits Systems Protection Board regarding the denial of survivor benefits. In particular, the petitioner claimed survivor benefits as a surviving former spouse when her deceased former husband failed affirmatively to re-elect her survivor benefits during the few months between their divorce and his death. On appeal, the Federal Circuit reversed the Board’s denial of survivor benefits. This is our opinion summary.

The Federal Circuit did not release any opinions or orders this morning on its website.

As we previously reported, two weeks ago today the Supreme Court granted a petition for certiorari in a veterans case decided by the Federal Circuit, George v. McDonough. The petitioner asked the Court to clarify the scope of clear and unmistakeable error with regard to cases involving veterans whose benefits have been wrongly withheld based on an incorrect interpretation of a statute. Notably, this is the only case this term in which the Supreme Court has decided to hear arguments in a case decided by the Federal Circuit. Here are more details about the case.