FedCircuitBlog

Here is an update on recent en banc activity at the Federal Circuit. Highlights include a petition filed in a pro se case; a new response to a petition raising questions related to injunctions; and the denial of four petitions raising questions related to standing, obviousness, and assignor estoppel. Here are the details.

This morning the Federal Circuit issued two nonprecedential opinions in patent cases, a nonprecedential order granting a petition for a writ of mandamus related to a motion to transfer, and another nonprecedential order denying petitions for writs of mandamus also related to motions to transfer. Here are the introductions to the opinions and text from the orders.

This month we highlight two scholarly articles related to the Federal Circuit.

• A Balanced Consideration of the Federal Circuit’s Choice-of-Law Rule by Jennifer E. Sturiale
• Review of Recent Veterans Law Decisions of the Federal Circuit by Angela Drake, Yelena Duterte, and Stacey-Rae Simcox

Here are the details.

• Federal Circuit Says University Can’t Be Pulled Into Patent Suit – In Gensetix, Inc. v. Baylor College of Medicine, sovereign immunity protected a university from being an involuntary plaintiff in a patent suit, but the suit could still proceed without the patent owner.
• Moderna Loses Challenge to Arbutus Patent on Vaccine Technology – Moderna could appeal to the Federal Circuit after a loss that might create obstacles in developing a coronavirus vaccine.
• NFL Team Loses Race to the Trademark Office, but It Might Not Matter – Being first in line to trademark the Redskins’ new team name won’t matter without objective evidence of a bona fide intent to use the mark in commerce at the time of filing

Here’s the latest.

This morning the Federal Circuit issued two nonprecedential opinions in a Merit Systems Protection Board case and a trademark case. Here are the introductions to the opinions.

Only one case being argued next week at the Federal Circuit attracted any amicus briefs, Conversant Wireless Licensing v. Apple Inc. This case previously came to the Federal Circuit in 2018 when the court determined that Apple infringed a patent asserted by Conversant. The court, however, remanded the case to the district court to determine whether the patent was unenforceable. On remand, the district court found that the patent was unenforceable, and Conversant now appeals that judgment. This is our argument preview.

• Federal Circuit Won’t Undo Intel Wins – The Federal Circuit upheld PTAB rulings in Intel Corp. v. Alacritech, Inc., cementing victory for Intel and other tech companies.
• Flash-of-Genius as Evidence of Eligibility – Steve Morsa filed a new Supreme Court petition using the Court’s “flash of genius” argument to justify granting certiorari.
• Another Arthrex Petition – Arthrex filed its second petition, out of three total petitions for writ of certiorari, challenging the Federal Circuit’s decision in Arthrex, Inc. v. Smith & Nephew, Inc.

Here’s the latest.

On Wednesday, the Federal Circuit issued its opinion in Uniloc 2017 LLC v. Hulu, LLC, a case we have been tracking because it attracted an amicus brief. In the opinion, Judges Wallach and Taranto affirmed the denial of a motion for rehearing by the U.S. Patent Trial and Appeal Board. In particular, they confirmed that the Board may consider § 101 eligibility challenges to proposed substitute claims in inter partes review proceedings. Judge O’Malley filed a dissenting opinion based on her view that the case is moot. Here is a summary of the opinion and dissent.

This morning the Federal Circuit issued one precedential opinion in a patent case. The court affirmed a district court’s ruling that sovereign immunity barred involuntary joinder, but reversed its ruling that, as a result, the lawsuit could not proceed under Federal Rule of Civil Procedure 19(b). The three judges on the panel (O’Malley, Newman, and Taranto) splintered in their reasoning. Here is the introduction to the majority opinion and the separate concurring and dissenting opinions.

This post summarizes recent activity at the Supreme Court in cases decided by the Federal Circuit.

• Steve Morsa submitted the only petition for writ of certiorari coming from the Federal Circuit this week in Morsa v. Iancu.
• For both Lea v. United States and LaTurner v. United States the government filed a singular brief in opposition opposing a writ for either petition.
• Lastly, two waivers of right to respond were submitted to the Supreme Court in both Thomas v. Iancu and Phazzer Electronics, Inc. v. Taser International, Inc.

Here are the details.