FedCircuitBlog

Guest Post by Jason Rantanen

In its 2021 Arthrex decision, the Supreme Court rewrote the procedural process that Congress created for reviewing decisions by Patent Trial and Appeal Board (PTAB) judges.1 Rather than directly appealing to the Federal Circuit (or filing an action in the Eastern District of Virginia), a party that is dissatisfied with the outcome at the PTAB can petition the Director of the United States Patent and Trademark Office (the Director) for rehearing.2 This post summarizes some of my thoughts on the effects of Arthrex on PTAB decision-making, especially when PTAB decisions are appealed to the Federal Circuit. Overall, I’m skeptical that Arthrex presents a great opportunity for the Director to engage in patent policymaking. Given the way that United States Patent and Trademark Office (PTO) review is structured, there’s relatively little room for the Director to engage in policy-shaping through review of PTAB decisions. There are many other ways in which the Director can influence patent policy, and these are likely to be more promising paths than exercising direct oversight over individual PTAB decisions.

Here is an update on recent en banc activity at the Federal Circuit. Last week the court granted en banc reharing in a veteran’s case, and tomorrow the en banc court will hear oral argument in another veteran’s case. As for patent cases, the court received two new responses to petitions raising questions related to the Appointments Clause and the written description requirement, and the court invited a response to a petition raising questions related to conflicts of interest and due process. Finally, in another patent case the court received a new amicus brief supporting a petition raising a question related to claim construction. Here are the details.

This morning the Federal Circuit issued a precedential opinion in a patent case. In the opinion, the court explains why it reversed a district court’s denial of a motion for a preliminary injunction and remanded the case for entry of the preliminary injunction. The Federal Circuit also issued a nonprecedential opinion in a patent case. This opinion addresses the court’s appellate jurisdiction, concluding that the appropriate venue for the appeal is the Ninth Circuit. The Federal Circuit released an accompanying nonprecedential order transferring the appeal. Finally, the court issued two Rule 36 Judgments. Here are the introductions and links to the opinions and orders.

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 underscore[d] [the] importance of [patent law’s] written description requirement”;
• another article explaining how the Federal Circuit “threw out a jury verdict ordering Apple Inc and Broadcom Inc to pay $1.1 billion to the California Institute of Technology” in a patent case;
• another another article assessing how the Federal Circuit “upheld a Michigan judge’s decision to grant a preliminary injunction” in a patent case; and
• another article discussing how the Federal Circuit recently held that the Patent Trial and Appeal Board “improperly relied on applicant admitted prior art” in an inter partes review proceeding.

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

Guest Post by Tejas N. Narechania*

The Supreme Court’s decision in Arthrex is the latest in a growing set of decisions regarding administrative patent law. A close look at this entire series suggests that Arthrex is a culmination of a subtle shift in the Court’s approach to such cases. Where the Court once lauded the Patent Office’s expertise, the Court’s more recent decisions have emphasized flexibility and political accountability in patent decision-making. This development is both significant and salutary. For one, it marks the ongoing maturation of administrative patent law as one branch of administrative law, subject to the influences of the myriad administrative law values beyond expertise. This shift, moreover, is constructive, subjecting innovation- and access-governing principles to more democratic constraints.

This week is Court Week at the Federal Circuit, with hearings starting today. Due to the recent spike in COVID cases, all February oral arguments will be held remotely. As it has for some time now, however, the Federal Circuit is providing access to live audio of each panel scheduled for argument via the Federal Circuit’s YouTube channel. In total, including a case set to be argued next week, the court will convene nine panels to consider about 41 cases. Of these 41 cases, the court will hear oral arguments in 31. Of these argued cases, two attracted amicus briefs: one veterans case being heard en banc and one patent case. Here’s what you need to know about these two cases.

This morning the Federal Circuit released three precedential opinions in patent cases and one nonprecedential opinion in a trademark case. In the first precedential opinion, the court affirmed invalidity decisions of the Patent Trial and Appeal Board in inter partes review proceedings. In the second precedential opinion, the court affirmed-in-part, reversed-in-part, vacated-in-part, and remanded the latest appeals involving Apple and Wi-LAN. In the third precedential opinion, the court affirmed-in-part, vacated-in-part, and remanded an appeal in a case pitting the California Institute of Technology against Broadcom Ltd. Notably, Judge Dyk concurred-in-part and dissented-in-part from the majority’s holding. Finally, in the court’s nonprecedential opinion it affirmed the cancelation of a trademark registration. Notably, Judge Cunningham authored the nonprecedential opinion, her first for the court. Here are the introductions to the opinions.

Starting next week, Fed Circuit Blog will publish written contributions from law professors participating in Fed Circuit Blog’s third online symposium. Entitled “Patent Law and Institutional Choice,” this symposium explores the institutional structure of the U.S. patent system and the roles of its institutions: the U.S. Congress; U.S. Patent and Trademark Office; federal district courts and juries; the U.S. Court of Appeals for the Federal Circuit; and the U.S. Supreme Court. Confronting critiques of this structure and these institutions, the symposium considers how the U.S. patent system may be improved to further the innovation economy. Here is more information on the topics these professors will discuss in their written contributions.

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

• a blog post “assessing responses to the PTO’s 2021 patent eligibility study”;
• another blog post explaining how the Federal Circuit vacated and remanded an International Trade Commission decision in a patent case based on an abuse of discretion in admitting expert testimony;
• an article discussing how the Federal Circuit recently reversed a decision of the United States District Court for the Northern District of California to invalidate patent claims for indefiniteness; and
• another article detailing how “Qualcomm Inc. convinced the Federal Circuit that the U.S. Patent and Trademark Office improperly invalidated parts of its semiconductor patent based on admissions made in the patent itself.”