FedCircuitBlog

Last week, late in the day on Friday the Federal Circuit granted a petition for rehearing and issued a nonprecedential opinion in a patent case. The court noted that Judges Newman and Stoll were recused based on a conflict of interest that was identified by the parties after oral arguments were made and judgment was entered. Judges Moore and Chen replaced Judges Newman and Stoll on the panel. The court admonished that the parties should have notified the court about the conflict sooner and warned that the Federal Circuit expects the utmost candor towards the court concerning conflicts. Here is text from the opinion.

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

Here is an update on recent en banc activity at the Federal Circuit. The court ordered a stay in the proceedings in a veteran’s case. As for patent cases, the court received a new petition raising questions related to claim construction and the written description requirement. The court also invited a response to the same petition. Finally, the court granted panel rehearing but denied rehearing en banc in response to a petition raising questions related to an alleged conflict of interest and summary affirmances. Here are the details.

This morning the Federal Circuit issued a precedential opinion in a patent case appealed from the International Trade Commission. The case addresses whether the ITC abused its discretion in refusing to modify or rescind a civil penalty after a patent was found to be invalid. Here is the introduction to the opinion.

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

• a blog post discussing how the “Federal Circuit sidestep[ed] [the] determination of generics’ skinny label as protection against induced [patent] infringement”;
• an article detailing how the “Federal Circuit h[eld] that a price ‘quotation’ can trigger [patent law’s] on-sale bar”; and
• another article analyzing how “Disney convince[d] [the] Fed. Circ. to reject [the] ‘Teen Tinker Bell’ trademark.”

As we reported last week, the Supreme Court granted a petition for certiorari in Arellano v. McDonough, which raises questions about equitable tolling with regard to retroactive disability benefits for veterans. This is the second veterans case during the Supreme Court’s October 2021 term in which the Court has granted review. This case arises from a decision that left the Federal Circuit evenly split on the reasons for its decision “that equitable tolling is not available to afford Mr. Arellano an effective date earlier than the date his application for benefits was received.” Here are more details about the case.

This morning the Federal Circuit issued a nonprecedential opinion in a patent case appealed from the Patent Trial and Appeal Board. The opinion affirms the Board’s determination that patent claims were obvious. Here is the introduction to the opinion.

Guest Post by Paul R. Gugliuzza

Professor Rochelle Dreyfuss, probably the keenest academic observer of the Federal Circuit, memorably called the court “a continuing experiment in specialization.” She was writing in 2004, shortly after the twentieth anniversary of the court’s founding. With the court’s fortieth anniversary approaching in 2022, can we finally answer the question: has the Federal Circuit experiment succeeded?

Here is this month’s update on activity in cases pending before panels of the Federal Circuit where the cases involve at least one amicus brief. We keep track of these cases in the “Other Cases” section of our blog. Today, with respect to these cases we highlight three opinions: the first in a death benefit case addressing a former spouse’s annuity, the second in a patent case, and a consolidated cases regarding the Tucker Act. We also highlight reply briefs in three patent cases, and an argument recap in a patent case that attracted two amicus briefs. Here are the details.

This morning the Federal Circuit issued a precedential order concerning attorneys who violated the court’s protocols issued in light of COVID-19. Specifically, while the in-person oral argument protocols allowed only arguing counsel and no more than one attendee to be present, the parties in question brought two arguing counsel and two attendees in violation of the protocols. Notably, the court did not sanction the attorneys, but indicated that “the bar is on notice that this court takes compliance with these protocols very seriously and that sanctions will likely be imposed if a future violation of the protocols takes place.” Here is the introduction to the order.