FedCircuitBlog

Here is an update on recent en banc activity at the Federal Circuit. An amended petition was filed in a veterans case recently argued before the en banc court. As for pending en banc petitions in patent cases, highlights include new responses to petitions raising questions related to claim preclusion and sanctions; a new amicus brief filed in a case raising a question related to obviousness; and the denial of three petitions raising questions related to remedies, issue and claim preclusion, jurisdiction in inter partes review, and alleged due process and takings violations in inter partes review. Here are the details.

As we mentioned yesterday, four cases being argued next week at the Federal Circuit attracted amicus briefs. The second case we are previewing is Boeing Co. v. Secretary of the Air Force. In this case, the court will consider whether the Armed Services Board of Contract Appeals erred in holding that the Defense Federal Acquisition Regulation Supplement 252.227-7013 precludes government contractors from marking technical data delivered to the Government in a certain way. In particular, Boeing argues it should be permitted to mark technical data in a way that (a) recognizes the Government’s unlimited rights in the data, (b) does not restrict or impair the Government’s rights, and (c) restricts only the rights of third parties to use the data absent permission from the contractor or the Government. This is our argument preview.

This morning, the Federal Circuit issued a precedential opinion in a trademark case and a nonprecedential opinion in a veterans case. Here are the introductions to the opinions.

• Federal Circuit to district court: Show Us Your Work on Section 101 – The Federal Circuit reversed a decision from the District of Delaware for a lack of reasoning supporting the invalidation of patent claims.
• No Pause on American Axle Case for Coming Supreme Court Petition – American Axle did not persuade the Federal Circuit to stay its case in American Axle & Manufacturing, Inc. v. Neapco Holdings LLC, but Judge Moore took the opportunity to ask for guidance from the Supreme Court on patentability.
• Determining the Likelihood that an AI Patent Application Will Be Allowed at the USPTO – The USPTO is adapting to increased interest in artificial intelligence, but decisions from the Federal Circuit and Supreme Court have caused a rise in rejections in the field.

Here’s the latest.

Last week, the Federal Circuit issued its opinion in Monk v. Wilkie, a veterans case we have been tracking because it attracted five amicus briefs. The panel comprised of Judges Newman, Lourie, and Reyna unanimously affirmed a decision by the Court of Appeals for Veterans Claims that the petitioners in this case did not meet the commonality requirement for class certification. Judge Newman wrote the opinion, and Judge Reyna provided additional views in a separate opinion. Here is a summary of the opinions.  

This past Friday, the Federal Circuit announced an order closing the court on Friday, November 27, 2020, immediately following the Thanksgiving federal holiday on Thursday, November 26, 2020. Here is the text of the order.

The Federal Circuit did not publish any new opinions or orders this morning.

Four cases being argued next week at the Federal Circuit attracted amicus briefs. One is Veterans4You LLC v. United States. In this case, Veterans4You asserts that the VA wrongly invoked the “printing mandate” in 44 U.S.C. § 501 to route a Department of Veterans Affairs (“VA”) procurement through the Government Publishing Office (“GPO”). Veterans4You contends this approach resulted in a violated of the “Rule of Two,” a statutory preference for veteran-owned small businesses or service-disabled veteran-owned small businesses. Veterans4You argues that the decision by the Court of Federal Claims upholding the VA’s action should be reversed. This is our argument preview.

This morning, the Federal Circuit issued a precedential opinion in a patent case, a precedential order denying a stay in a patent case, and a nonprecedential opinion in a patent case. The Federal Circuit also issued a Rule 36 judgment. Here are the introductions to the opinions, the text of the order, and a link to the Rule 36 judgment.

• Fed. Circ. Ruling Is Troubling For Generic Drug Manufacturers – In a 2-1 decision, the Federal Circuit issued an opinion addressing the role of skinny labels in an induced infringement analysis.
• Work History Tool Properly Held Ineligible for Patent Protection – The Federal Circuit issued a nonprecedential opinion on Monday affirming a district court decision that an invention directed at a method for verifying work history is too abstract to patent.
• Fed. Circ. Urged To Undo Ugg’s $450K Trademark Win – An Australian apparel company argued on Monday that the lower court used the wrong legal test in finding that “ugg” is not a generic word for a kind of sheepskin boot.

Here’s the latest.