FedCircuitBlog

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.

This morning the Federal Circuit issued one nonprecedential opinion in a trade case involving an antidumping and countervailing duty investigation. Here is the introduction to the opinion.

This morning the Federal Circuit issued one precedential opinion in a patent case addressing the ability of the Patent Trial and Appeal Board to consider eligibility challenges to proposed substitute claims in inter partes review proceedings. Here is the introduction to the opinion.

Here is an update on recent en banc activity at the Federal Circuit. In NOVA v. Secretary of Veterans Affairs, a veterans case in which the en banc court will consider the court’s jurisdiction to review interpretive rules the Department of Veterans Affairs promulgates in its Adjudication Procedures Manual, three new amicus briefs were filed. Other highlights include new petitions in two patent cases raising questions related to venue and claim preclusion; a new response to a petition in another patent case raising questions related to jurisdiction; an invitation to respond to a petition raising questions related to patent eligibility; and the denial of a petition raising questions related to obviousness. Here are the details.

This morning the Federal Circuit did not issue any opinions or orders.

• Federal Circuit Affirms District Court’s Eligibility Analysis – In Packet Intelligence, LLC v. Netscout Systems, Inc., the court held NetScout willfully infringed Packet Intelligence’s patents, rejecting NetScout’s argument that the patents were directed toward an abstract idea.
• Nike and Adidas Escape Patent Claims Over Athletic-Shoe Soles – According to a Federal Circuit decision on July 16, the shoe companies did not infringe Akeva’s wear-reducing patent because the companies’ shoes do not have detachable soles.
• Patent invalidity claim is no cure for ITC’s import ban on grippy mugs – On July 16, the Federal Circuit ruled that a party cannot challenge a general ITC exclusion order barring importation of products for infringing a patent by claiming the patent is invalid.

Here’s the latest.