FedCircuitBlog

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.

This morning the Federal Circuit issued a nonprecedential opinion in a patent case appealed from the Patent Trial and Appeal Board; a nonprecedential order denying a petition for patent and en banc rehearing in a patent infringement case, along with a nonprecedential opinion by Judges Lourie, Prost, and Hughes concerning the denial of panel rehearing and the argument their panel decision changed the law of enablement; and three Rule 36 summary affirmances. Here are the introductions to the opinions and a list of the summary afirmances.

This morning the Supreme Court agreed with the Federal Circuit that the statutory authority given to the U.S. Patent and Trademark Office’s Patent Trial and Appeal Board violates the Appointments Clause. The Supreme Court, however, disagreed with the Federal Circuit as to the appropriate remedy given this violation. According to the Supreme Court, both the constitutional violation and the appropriate remedy relate to the lack of statutory authority for the Director of the USPTO, a principal officer of the United States nominated by the President and confirmed by the Senate, to decide whether to grant rehearing with respect to the underlying inter partes review proceeding. Here is a brief summary of the Court’s holding in United States v. Arthrex, Inc.; Arthrex, Inc. v. Smith & Nephew, Inc.; and Smith & Nephew, Inc. v. Arthrex, Inc., along with language from the Court’s controlling opinion.

Yesterday, the Federal Circuit decided Arellano v. McDonough, a case we have been following since the court scheduled an en banc hearing. Split on reasoning but united in outcome, the court issued a short, unanimous, per curiam opinion affirming the Court of Appeals for Veterans Claims. In addition to the per curiam opinion, however, the court issued two concurrences, each representing the opposing views of six judges. Here is our summary of the court’s opinions.

Yesterday the Senate Judiciary Committee voted 16-6 in favor of President Biden’s nomination of Tiffany P. Cunningham to the Federal Circuit. As a result, her nomination has advanced to the full Senate and has been placed on the Senate’s Executive Calendar.

Late yesterday afternoon, the Federal Circuit announced that the court will be closed today, in honor of the newly-created Juneteenth National Independence Day. Notably, the court highlighted that all filing deadlines for today are now due on Monday, June 21. Here is the text of the announcement.

American Axle is the Supreme Court’s Chance to Give Patent Eligibility a Tune-Up – On IPWatchDog.com, Dominic Frisina posts on the Supreme Court’s pending decision whether to review a Federal Circuit decision from 2020 related to patent eligibility.

Albright’s Delay in Patent Suit Not ‘Egregious,’ Fed. Cir. Says – Perry Cooper reports on how Freelancer failed to convince the Federal Circuit to order Judge Albright to act on its motion to dismiss in a patent case.

Patent Underlying Walker Process Claims is Not Enough to Give Rise to Federal Circuit Jurisdiction – Caitlin O’Connell and Elizabeth Ferrill write about the Federal Circuit’s decision to transfer a recent case to the United States Court of Appeals for the Fifth Circuit due to lack of jurisdiction. 

Fed. Circ. Won’t Allow ‘Focus Vision’ TM, Citing ‘Focus’ Marks – In an article on Law360.com, Tiffany Hu focuses on the Federal Circuit’s decision on Monday to uphold a Trademark and Appeal Board’s decision in a trademark case.

This morning the Federal Circuit issued a precedential opinion in an en banc veterans case. The court unanimously held that equitable tolling is not available in this particular case, but disagreed by an equal vote on the reasoning supporting this judgment. In particular, the judges disagreed as to the general question of whether equitable tolling is available with respect to the effective date of an award of disability compensation to a veteran pursuant to 38 U.S.C. § 5110(b)(1). The court also issued a nonprecedential opinion in a patent case appealed from the United States Patent and Trademark Office’s Patent Trial and Appeal Board, affirming the Board over a partial dissent by Judge Prost. Here are the introductions to the opinions.