Opinions

Opinions & Orders – October 30, 2020

This morning, the Federal Circuit issued a nonprecedential order dismissing appeals and denying a petition for a writ of mandamus in a case decided by the Patent Trial and Appeal Board. Here is the introduction of the order.

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Argument Preview / Panel Activity

Argument Preview – Euzebio v. Wilkie

The fourth case being argued next week at the Federal Circuit that attracted amicus briefs is Euzebio v. Wilkie. In this case, the court will consider three issues related to veterans law: (1) whether “[t]he Veterans Court’s ‘direct relationship’ requirement is an erroneous legal standard for determining what facts are before the Board because it excludes relevant matters that are known or should be known to the Board;” (2) whether “the Veterans Court erred in holding that it lacks the legal authority to look at relevant facts known to the agency for purposes of reviewing the Board’s decision;” and (3) whether “the Veterans Court misinterpreted the scope of VA’s duty to assist when it affirmed VA’s failure to develop the record with relevant facts concededly known to the agency.” This is our argument preview.

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Opinions

Opinions & Orders – October 29, 2020

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

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Petitions / Supreme Court Activity

Recent Supreme Court Activity

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

Here are the details.

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Scholarship

Recent Scholarship Related to the Federal Circuit

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

Here are the details.

Retroactivity and Appointments

In his article, Professor Andrew C. Michaels “reviews the doctrine of retroactivity and appointments, discusses the relevant academic literature, and proposes a coherent framework for courts to use when faced with these important questions.” Specifically, he argues that “[t]he current law of retroactivity in the Appointments Clause context is confused” and has resulted in “significant practical consequences.” Professor Michaels also explores the Federal Circuit’s recent Arthrex decision and the court’s application of the doctrine of retroactivity with regards to the Appointments Clause.

Does Conjoint Analysis Reliably Value Patents?

In their article, Professor Bernard Chao and Sydney Donovan explore the reliability of conjoint analysis to calculate the value of the contribution a patent may make to the overall value of a product. The authors argue that “courts should not allow evidence of conjoint analysis to show the specific monetary value of specific features.” In exploring the validity of conjoint analysis, the authors found that their “surveys yielded irrationally high numbers.” Further, they demonstrate that “experts can manipulate the results of conjoint analysis by selecting among a number of different ostensibly reasonable statistical choices and picking the one that yields the most desirable outcome.”

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Argument Preview / Panel Activity

Argument Preview – Monk v. Wilkie

The third of four cases being argued next week at the Federal Circuit that attracted amicus briefs is Monk v. Wilkie. In this case, the court will consider three issues related to veterans law: (1) Did the Court of Appeals for Veterans Claims misinterpret 38 U.S.C. § 7261(a)(2) in holding that a five-year delay in deciding a disabled veteran’s administrative appeal does not amount to an unreasonable delay; (2) Did the CAVC misinterpret and misapply the Fifth Amendment Due Process Clause in holding that such a five-year delay does not violate the veteran’s due process rights; and (3) Did the CAVC misinterpret the mootness standard in dismissing certain Appellants’ claims. This is our argument preview.

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Opinions

Opinions & Orders – October 28, 2020

This morning, the Federal Circuit issued a precedential order granting a petition for a writ of mandamus to vacate a district court’s denial of transfer. Here is text from the order.

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En Banc Activity

Recent En Banc Activity

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.

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Argument Preview / Panel Activity

Argument Preview – Boeing Co. v. Secretary of the Air Force

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.

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Opinions

Opinions & Orders – October 27, 2020

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.

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