FedCircuitBlog

This morning the White House announced that President Biden intends to nominate Tiffany P. Cunningham, a partner at the law firm of Perkins Coie LLP in Chicago, to serve as a Circuit Judge on the Federal Circuit. In the announcement, the White House highlighted that Cunningham is a registered patent attorney who clerked for Judge Dyk from 2001 to 2002. Her law firm bio also highlights that she holds a degree in chemical engineering from MIT along with her law degree from Harvard Law School. If confirmed, she will be the first African American to serve as a judge on the Federal Circuit. Here is the relevant text of today’s announcement.

Guest Post by Kristen Osenga

In any given year, the Federal Circuit covers a wide spectrum of issues in patent law, and 2020 was no different. Of course, a lot about 2020 was different — including seeing the Court hold (and now livestream) telephonic arguments — but most of the patent cases decided were similar in type to other years . . . a little patent-eligible subject matter, a little jurisdiction and venue, a case about infringement of standard essential patents, and a bit of deciding what the Patent Trial and Appeal Board can and cannot do. There were no real blockbuster cases in 2020 (other than maybe the Arthrex denial of rehearing, more on that later). This could be due to the pandemic, or maybe it is a sign that patent law is settling in for a bit. Of course, that does not mean the law has settled in the right place, but that is a different issue for a different day.

For today, a few cases are worth highlighting from the Federal Circuit’s 2020 patent opinions. To be clear, this is not an exhaustive review, but rather simply a short selection noting some of the more important patent cases decided last year.

• Judge O’Malley Thinks Federal Circuit Could Be Back This Summer – A trio of past and current Federal Circuit judges gave their thoughts on a return to in-person arguments and other pandemic-related adjustments.
• A Resilient Petticoat – In Transtex Inc. v. Laydon Composites Ltd., the Federal Circuit affirmed the findings of the PTAB regarding the obviousness of some claims within a patent covering a strut holding a tractor-trailer skirt in place.
• Federal Circuit Backs Lyft in Ride-Sharing Patent Fight – The Federal Circuit affirmed the lower court’s invalidity finding of RideApp’s patent in its suit against Lyft.

Here’s the latest.

This morning the Federal Circuit issued a nonprecedential order dismissing both a petition for an interlocutory appeal and an appeal. The court also issued a nonprecedential order denying a petition for a writ of mandamus related to transfer as moot. Here is text from the orders.

The Federal Circuit announced today that, beginning next month and until the courthouse reopens, the court will offer live audio streaming of all of its oral arguments on the court’s YouTube channel rather than via publicly-accessible telephone conference calls. Here is the text from today’s announcement.

Guest Post by Devin S. Sikes

For the international trade bar, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) remains as important as ever because it so often has the final say on issues arising under U.S. international trade law. In 2020, the Federal Circuit issued thirty opinions in appeals from the U.S. Court of International Trade (CIT).[1] The Federal Circuit deemed nineteen of those thirty opinions worthy of “precedential” status.[2] To be sure, each of those nineteen precedential opinions addressed important antidumping, countervailing duty, and customs questions. Even the Federal Circuit’s non-precedential opinion in American Institute for International Steel v. United States concerned a significant issue: whether Section 232 of the Trade Expansion Act of 1962 (Section 232), which President Trump invoked more often than any of his predecessors, unconstitutionally delegates legislative authority to the President. Nevertheless, the Federal Circuit’s en banc decision in Sunpreme Inc. v. United States stands head-and-shoulders above the rest in terms of its importance and potential impact.

I’m excited to announce that this week FedCircuitBlog will host its second online symposium. The symposium will be a Year in Review, reviewing the work of the Federal Circuit in 2020 in various areas of the court’s jurisdiction: appeals involving international trade, patents, money damages claims against the federal government, federal employment law, and veterans’ benefits. We will welcome guest blog posts from leading professors and practitioners in these subject matter areas. Here, however, I first provide a brief overview of the court’s activity this past year–a year markedly different as a result of the COVID-19 pandemic, but a year in which the court continued its work hearing appeals and deciding cases in the areas of its jurisdiction.

This week we are previewing two cases being argued next week at the Federal Circuit that attracted amicus briefs. Today we highlight a veterans case, Lynch v. McDonough. In this case, Lynch asks the Federal Circuit to overrule its decision in Ortiz v. Principi, a case that sets forth the burden of proof by which veterans must prove their claims. This is our argument preview.

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

• Patent Appeal Lessons From Fed. Circ. Remote En Banc Args – The U.S. Court of Appeals for the Federal Circuit has sat remotely en banc for only two cases in the past year, both of which have been veterans cases, but their oral arguments can provide insight to all practitioners.
• Novartis Patent on MS Drug Gilenya Evades Supreme Court Scrutiny – The Supreme Court will not explore the debate over whether being in regular competition is enough to challenge a PTAB ruling on a rival’s patent without having been sued for infringement.  
• Fourth Circuit Finds ‘Pretzel Crisps’ Plaintiffs are Not Bound to Federal Circuit Across Appeals from Distinct TTAB Decisions – The Fourth Circuit joins the Seventh and Ninth Circuits in considering the reach of the Lanham Act’s permission to seek review of a TTAB decision at either the CAFC or in federal district court.

Here’s the latest.