FedCircuitBlog

Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today we highlight:

• a blog post reviewing a recent Federal Circuit opinion and arguing a “defendant who is temporarily excluded from the market on the basis of a patent that turns out, ex post, to have been either invalid or not infringed (or otherwise unenforceable)” should be “compensated for the interim losses it suffers”;
• an article suggesting that “[s]atisfying the written description and enablement requirements has emerged as a significant challenge in patenting [antibody-drug conjugates] inventions in the U.S.”;
• an article by Former Federal Circuit Judge Kathleen O’Malley “reflecting not only on what the Founders rejected, but on what they tried to build”; and
• an article highlighting that “President Donald Trump . . . threatened a 100% tax on imports from any country that imposes a tax on digital services from United States companies.”

Late yesterday, the Federal Circuit released two nonprecedential orders dismissing appeals. This morning, the court released one precedential opinion and three nonprecedential opinions. The precedential opinion and one of the nonprecedential opinions come in patent cases appealed form the District of Delaware. One of the other nonprecedential opinions comes in a government contract case appealed from the Court of Federal Claims, and one comes in another patent case appealed from the Eastern District of North Carolina. Here are the introductions to the opinions as well as links to the dismissals.

Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. There are currently no pending cases. As for pending petitions, since our last update, one new petition was filed in a pro se case; one waiver of the right to respond to a petition was filed in another pro se case; and the Court denied six petitions in four patent cases, one trademark case, and one more pro se case. Here are the details.

In one case being argued at the Federal Circuit in July the court appointed counsel as amicus curiae. This case is Loomis v. Collins, a pro se veterans case. In it, Loomis appeals a decision of the Court of Appeals for Veterans Claims. The case presents questions related to educational assistance benefits and the validity of a regulation issued by the Department of Veterans Affairs. This is our argument preview.

Late yesterday, the Federal Circuit released a nonprecedential order dismissing an appeal. This morning the court released one precedential opinion and two nonprecedential opinions. The precedential opinion comes in a patent case appealed from the District of Delaware. Notably, Judge Dyk concurred in part and dissented in part. One of the nonprecedential opinions comes in a trademark case appealed from the Trademark Trial and Appeal Board, and the other comes in a veterans case appealed from the Court of Appeals for Veterans Claims. Here are the introductions to the opinions as well as a link to the dismissal.

Here is an update on recent en banc activity at the Federal Circuit in patent cases. Since our last update, three new petitions for en banc rehearing have been filed raising questions related to appellate procedure and the non-obviousness requirement. Also one new response brief responds to a petition raising a question related to damages. Here are the details. 

Earlier this month, the Supreme Court issued its opinion in Hikma Pharmaceuticals USA Inc. v. Amarin Pharma, Inc., a patent case originally decided by the Federal Circuit. In this case, Hikma Pharmaceuticals challenged a Federal Circuit decision addressing so-called skinny labeling and inducement of patent infringement. The Federal Circuit had rejected “characterizations that a reversal in this case would ‘effectively eviscerate section viii carve-outs’” of the Hatch-Waxman Act and held that Amarin had “plausibly pleaded that Hikma . . . induced infringement.” In a unanimous opinion authored by Justice Jackson, the Supreme Court reversed and remanded. This is our summary of the Supreme Court’s opinion.

This morning, the Federal Circuit released two precedential orders and two nonprecedential opinions. One of the precedential orders comes in a government contract case appealed from the Armed Services Board of Contract Appeals, and the other comes in a takings case appealed from the court of Federal Claims. One of the nonprecedential orders transfers a petition to review a decision of the Merit Systems Protection Board to the Eastern District of Virginia, and the other transfers a petition to review a decision of the Merit Systems Protection Board to the Eastern District of California. Here are the introductions to the opinions and orders.

Yesterday the Federal Circuit announced a ticket release for the Federal Circuit Center for Innovation & Law’s America250 event. Here is the full text of the update:

Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today we highlight:

• a blog post discussing how a recent “concurrence . . . provides more structure to the ‘skilled searcher conducting a diligent search’ estoppel test” related to inter partes review proceedings;
• an article highlighting how a recent Federal Circuit decision “suggests that plaintiffs may not have the final word” on whether “trade secret plaintiffs can try to channel cases into other courts of appeals by strategically withholding patent claims”;
• a blog post covering how the USPTO “issued a notice designating as precedential a Sua Sponte Director Review Order of a Patent Trial and Appeal Board . . . decision granting institution in three inter partes review . . . proceedings”; and
• an article noting how, for “one day in July, Washingtonians will get access to an under-the-radar building steps away from the White House that’s filled with artifacts spanning American history.”