FedCircuitBlog

Here is an update on recent en banc activity at the Federal Circuit in patent cases. Highlights include a new petition in a pro se patent case and two new invitations for responses in patent cases raising questions related to obviousness and reduction to practice. The court also denied a petition in a patent case raising questions related to construction of alleged means-plus-function limitations. Here are the details.

Earlier this month, the Federal Circuit heard oral argument in Sun Pharmaceutical Industries, Inc. v. Incyte Corporation. In this case, the Federal Circuit is reviewing a decision by the Patent Trial and Appeal Board that the inter partes review petitioner “has shown by a preponderance of the evidence that the challenged claims are unpatentable” as obvious. Notably, in this case, Sun Pharmaceutical Industries was substituted for Concert Pharmaceuticals as the appellant to reflect a recent merger. This is our argument recap.

This morning, the Federal Circuit released two opinions. Specifically, the court released a precedential opinion in a veterans case addressing whether the Court of Appeals for Veterans Claims properly determined that no remand to the Board of Veterans’ Appeals was required when denying a plaintiff’s claim. The court also released a nonprecedential opinion in a pro se case in which the Court of Federal Claims dismissed a plaintiff’s case for failure to state a claim. Here are the introductions to the opinions.

Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today’s report highlights:

• an article showcasing five “patent cases to watch in the second half of 2023”;
• a blog post summarizing comments made by Judge Newman in her recent Bloomberg Podcast appearance;
• a blog post about the Federal Anti-Impersonation Right, a newly proposed “federal right of publicity” that “would establish a minimum level of protection against the unauthorized commercial use of a person’s name, image, likeness, or other identifying aspects of their persona”; and
• an article discussing recent and upcoming Supreme Court decisions in intellectual property cases.

Earlier this month, the Federal Circuit heard oral argument in Besanceney v. Department of Homeland Security. In this case, the Federal Circuit reviewed a finding by the Merit Systems Protection Board that disclosures made by Besanceney, a criminal investigator for the Transportation Security Administration, were not protected under the Whistleblower Protection Enhancement Act. Notably, this case was decided via a summary affirmance the day after oral argument was heard. This is our argument recap.

This morning, the Federal Circuit released two opinions: a precedential opinion in a patent case addressing infringement and anticipation and a nonprecedential opinion in a pro se vaccine case we have been tracking because it attracted an amicus brief. Late last Friday, the court also released a nonprecedential order dismissing an appeal. Here are the introductions to the opinions and a link to the dismissal.

Late last month, the Federal Circuit issued its opinion in Jenkins v. United States, a takings case we have been following because it attracted an amicus brief. In this case, the Federal Circuit reviewed a district court’s conclusion that it did not have jurisdiction over a due process claim and its grant of the government’s motion for summary judgment on a takings claim related to the seizure and withholding of vehicles as the result of a drug conspiracy investigation. In an opinion authored by Judge Dyk and joined by Judges Lourie and Stark, the Federal Circuit affirmed in part and vacated and remanded in part. In particular, the court held that “there is no police power exception that insulates the United States from takings liability for the period after seized property is no longer needed for criminal proceedings.” This is our opinion summary.

The Federal Circuit did not release any opinions or orders today on its website.

Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today’s report highlights:

• a podcast episode discussing the ongoing investigation into Judge Newman’s fitness to serve as a judge;
• a blog post about the effects a recent Federal Circuit precedential opinion has on interference proceedings for post-America Invents Act patents; and
• an article about “evolving standards for stipulations to avoid discretionary denial” in inter partes review proceedings before the Patent Trial and Appeal Board.

This morning, the Federal Circuit released a nonprecedential opinion in a case appealed from the Merit Systems Protection Board addressing untimeliness of a petition for review. Late yesterday and this morning, the court also released four nonprecedential orders dismissing appeals. Here is the introduction to the opinion and links to the orders.