FedCircuitBlog

Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. This week the Court granted certiorari in a veterans case that raises questions regarding equitable tolling and retroactive disability benefits. The Court also requested the Solicitor General file a brief expressing the views of the United States in a patent case raising a question regarding standing to challenge the validity of patents. Additionally, three new petitions were filed with the Court: two in cases appealing decisions from the Merit Systems Protection Board and one in a patent case. Moreover, one amicus brief was submitted in a patent case; three briefs in opposition were filed in trade, employment, and veterans cases; one waiver of right to respond was filed in a patent case; three petitions were denied; and one petition was dismissed. Here are the details.

This morning the Federal Circuit issued a nonprecedential opinion in a patent case appealed from the Northern District of California. The opinion addressed whether a patentee’s arguments during reexamination before the Patent and Trademark Office narrowed the scope of claims and nullified a prior district court judgment of infringement. Notably, Judge Dyk dissented in part. Here is the introduction to the majority opinion and dissenting opinion.

Guest Post by Laura G. Pedraza-Fariña

When the 97th Congress passed The Federal Courts Improvement Act establishing the Federal Circuit as a centralized patent appeals court, Congress was predominantly concerned with addressing the wildly divergent set of patent rules developed by different circuit courts.1 Patent uniformity—and therefore certainty and notice to the nation’s innovators—drove much of the debate around the need for a centralized patent appeals court.2

Our modern technological and legal environment, however, could not be more different from the pre-genetic engineering, pre-Internet 1980s society. The late 1980s and 1990s ushered the modern age of genetic engineering and, with it, the possibility of patenting genes, gene editing technology, and diagnostic methods based largely on genetic sequencing.3 The emergence of the internet, and therefore of internet-based business models and software business patents, has also profoundly changed the types of patents that now dominate the Patent and Trademark Office (PTO) and the Federal Circuit’s dockets.4

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 claim construction; a new response to a petition raising questions related to an alleged conflict of interest and summary affirmances; and a new amicus brief in support of a petition raising a question related to the written description requirement. Finally the court denied a petition for rehearing en banc raising questions related to inducement of infringement and an evidentiary rule. Here are the details.

This morning the Federal Circuit issued two precedential opinions in related cases appealed from the Court of Federal Claims. The first opinion addresses standing to bring takings claims against the Federal Housing Finance Agency. The second opinion also addresses standing but also subject matter jurisdiction. The Federal Circuit also issued a nonprecedential opinion in an employment case appealed from the Merit Systems Protection Board. Finally, the court issued an erratum. Here are the introductions to the opinions and a link to the erratum.

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

• an article announcing the release of a report on “the developments shaping patent law”;
• another article discussing how the Federal Circuit recently affirmed a “district court finding that dual-access lock patents are invalid” as ineligible; and
• yet another article focused on a recent Federal Circuit ruling in a contract dispute.

Given that today is Presidents’ Day, the Federal Circuit did not release any opinions or orders this morning on its website.

Guest Post by Greg Reilly

For over a decade, patent litigation has been surprisingly concentrated in a single federal district court. At one time, almost half of the nation’s patent litigation occurred in small towns in eastern Texas.1 Now, 20% of patent litigation occurs before a single judge based in Waco, Texas.2 This concentration of patent litigation is not the result of the inherent characteristics of these districts but instead of the affirmative efforts of particular judges to attract patent cases to their courthouses.3 Scholarly commentary of this forum selling and patent litigation concentration, including by myself, has been largely critical.4 The primary objection is that the districts and judges competing for patent litigation improperly skew procedures in favor of the patentees who make the forum choice.5

This morning the Federal Circuit released a notice of amendments to the court’s Internal Operating Procedures. Notably, the amendments delete the indication that copies of opinions will be circulated to the court’s “senior technical assistant” who, “if requested . . . shall provide information on potential conflicts between the panel-approved opinion and any other prior opinions of the court or other relevant precedents.” Beyond that amendment, several other amendments relate to the ability of panels to withdraw and recirculate altered opinions. The amendments also make clear that panel reconsideration of an opinion withdraws any pending poll for rehearing en banc. Here is the text of today’s announcement with links to redlined and clean copies of the IPOs.

This morning the Federal Circuit issued a precedential opinion in a government contract case appealed from the Court of Federal Claims. The court also issued five nonprecedential opinions. Two came in patent cases appealed from the Patent Trial and Appeal Board. Two came in veterans cases appealed from the Court of Appeals for Veterans Claims. The last came in a government contract case appealed from the Armed Services Board of Contract Appeals. Here are the introductions to the opinions.