FedCircuitBlog

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, Larson v. McDonough. In this case, Larson asks the Federal Circuit to overrule what he characterizes as the Veterans Court’s prohibition of reviewing Board of Veterans Appeals decisions regarding the Department of Veterans Affairs Schedule of Disabilities. This is our argument preview.

This morning the Federal Circuit issued a nonprecedential opinion in an inter partes review proceeding appealed from the Patent Trial and Appeal Board. The Federal Circuit affirmed the PTAB’s rejection of arguments certain claims were obvious in light of the prior art. Here is text from the opinion.

This past Monday, June 21, the Supreme Court decided United States v. Arthrex, Inc., Smith & Nephew, Inc. v. Arthrex, Inc., and Arthrex, Inc. v. Smith & Nephew, Inc. By a vote of five to four, the Court concluded that the statutory authority conferred upon the Patent Trial and Appeal Board to issue final decisions on behalf of the Executive Branch in inter partes review proceedings violates the Constitution’s Appointments Clause because the PTAB’s Administrative Patent Judges are not nominated by the President and confirmed by the Senate. Given this violation, the Court voted seven to two to sever the unconstitutional portion of the patent statute, giving the Director of the Patent and Trademark Office, who is nominated by the President and confirmed by the Senate, the power to review the PTAB’s decisions. Here is a summary of the Court’s opinions.

Justices Craft Their Own Remedy for Violation of Constitution’s Appointments Clause – George Quillin and Jeanne Gills post to SCOTUSblog about the Supreme Court’s decision this week in United States v. Arthrex.

Yu v. Apple Settles It: The CAFC is Suffering from a Prolonged Version of Alice in Wonderland Syndrome – Gene Quinn reports on IPWatchDog that “the Federal Circuit seems to be dealing with an exceptionally prolonged and worsening version of Alice in Wonderland syndrome.”

Amarin Rebuffed in High Court Bid to Revive Vascepa Patents – Susan Decker and Greg Stohr report for Bloomberg that the Supreme Court “declined to consider a bid by Amarin Corp. to revive six patents on the heart medicine Vascepa.”

Supreme Court Rebuffs Cost-Sharing Reduction Payment Appeal; $20 Million For State-Based Marketplaces – On HealthAffairs.org, Katie Keith notes “that two August decisions by a three-judge panel of the Court of Appeals for the Federal Circuit will stand.”

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

Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. The last week has been a busy one. As for granted cases, this week the Court decided United States v. Arthrex, Inc., agreeing with the Federal Circuit that the America Invents Act created an Appointments Clause violation with respect to the appointment and supervision of Administrative Patent Judges in inter partes review proceedings. As for petition cases:

• three new petitions were filed in patent law, Tucker Act, and pro se cases;
• two respondents filed briefs in opposition in vaccine and government contract cases;
• a respondent filed a brief in support of a petition in a patent case;
• a reply brief was submitted in supported of a petition in a patent case;
• the government filed waivers of right to respond in a tax case and a pro se case;
• a petitioner in a patent case filed a motion to dismiss; and
• the Court dismissed thirteen petitions.

Here are the details.

This morning the Federal Circuit issued a nonprecedential opinion in a patent case vacating a Patent Trial and Appeal Board’s determination of obviousness and remanding the case for reconsideration. Here is the introduction to the opinion.

Here is an update on recent en banc activity at the Federal Circuit. The en banc court issued a long-awaited opinion last week in a veterans case addressing the applicability of equitable tolling to a particular statutory provision. The court received a response to a petition in a patent case, which raised a question related to competitor standing. Finally, the court denied rehearing in a case raising questions related to patent law’s enablement requirement. Here are the details.

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

This morning the Federal Circuit announced that starting August 30, for the first time since the onset of the pandemic more than a year ago, it will hold in-person oral arguments. Indeed, the court has indicated that every argument will be scheduled to occur in person, but that the court will entertain motions for leave to appear remotely in appropriate circumstances. The court issued protocols for these in-person arguments, along with an indication of appropriate bases for obtaining permission to appear remotely. Notably, the protocols highlight “the court’s strong preference for in-person argument, based on the court’s experience of its distinctive value.” Case in point: the court has indicated that, even if one side to an appeal gains permission to appear remotely, the other side will not be excused from appearing in person. Moreover, for the first time the court has opted to use videoconferencing (rather than audioconferencing) for remote appearances “unless the court directs otherwise.” Here are highlights from the protocols along with the text of today’s announcement.