FedCircuitBlog

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

• a blog post about “requirements for transparency regarding litigation funding and company and/or patent ownership” in the District of Delaware;
• an article about overcoming dismissals under Section 101 of the Patent Act; and
• another article about the Federal Circuit’s decision “reject[ing] a tech company’s bid to transfer a patent case it is facing out of . . . Waco.”

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

• an article discussing how the “Federal Circuit rejected a call to clarify the test for when an idea is too abstract to be eligible for a patent”;
• another article noting “the Electronic Frontier Foundation (EFF)[‘s] . . . campaign against Senator Thom Tillis’ (R-NC) proposed ‘Patent Eligibility Restoration Act of 2022;’” and
• a blog post highlighting how the Federal Circuit rescinded its “order relating to the unsealing of materials filed in cases docketed ten or more years ago.”

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

• an article discussing how, “[o]nce thought to be a toss-up, the Federal Circuit is now ruling for appellees nearly twice as often as appellants”;
• another article addressing how a recent Federal Circuit decision “shows [a] less rigid analysis” of corroboration of inventorship; and
• a third article highlighting several pending Supreme Court petitions in patent cases, including more than one that “raise important questions on Section 101 patent eligibility jurisprudence.”

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

• an article analyzing Judge Stark’s 2018 ruling as a district judge in an important patent eligibility case and how it might portend his analysis of patent eligibility as a judge on the Federal Circuit; and
• a blog post and an article discussing how the Federal Circuit recently addressed estoppel as a result of inter partes review.

Guest Post by Greg Reilly

For over a decade, patent litigation has been surprisingly concentrated in a single federal district court. At one time, almost half of the nation’s patent litigation occurred in small towns in eastern Texas.1 Now, 20% of patent litigation occurs before a single judge based in Waco, Texas.2 This concentration of patent litigation is not the result of the inherent characteristics of these districts but instead of the affirmative efforts of particular judges to attract patent cases to their courthouses.3 Scholarly commentary of this forum selling and patent litigation concentration, including by myself, has been largely critical.4 The primary objection is that the districts and judges competing for patent litigation improperly skew procedures in favor of the patentees who make the forum choice.5

Guest Post by Tejas N. Narechania*

The Supreme Court’s decision in Arthrex is the latest in a growing set of decisions regarding administrative patent law. A close look at this entire series suggests that Arthrex is a culmination of a subtle shift in the Court’s approach to such cases. Where the Court once lauded the Patent Office’s expertise, the Court’s more recent decisions have emphasized flexibility and political accountability in patent decision-making. This development is both significant and salutary. For one, it marks the ongoing maturation of administrative patent law as one branch of administrative law, subject to the influences of the myriad administrative law values beyond expertise. This shift, moreover, is constructive, subjecting innovation- and access-governing principles to more democratic constraints.

Today we highlight four recent papers related to the Federal Circuit. The first, co-authored by retired Federal Circuit Chief Judge Paul Michel, focuses on the transformation of the U.S. patent system over the past fifteen years. The second analyzes the justiciability of litigation upon the invalidation of patents. The third reviews the Federal Circuit’s patent eligibility decisions in the seven years following the Supreme Court’s decision in Alice v. CLS Bank. The fourth examines the availability of Federal Circuit decisions. Here are more details on these papers.

Justices Craft Their Own Remedy for Violation of Constitution’s Appointments Clause – George Quillin and Jeanne Gills post to SCOTUSblog about the Supreme Court’s decision this week in United States v. Arthrex.

Yu v. Apple Settles It: The CAFC is Suffering from a Prolonged Version of Alice in Wonderland Syndrome – Gene Quinn reports on IPWatchDog that “the Federal Circuit seems to be dealing with an exceptionally prolonged and worsening version of Alice in Wonderland syndrome.”

Amarin Rebuffed in High Court Bid to Revive Vascepa Patents – Susan Decker and Greg Stohr report for Bloomberg that the Supreme Court “declined to consider a bid by Amarin Corp. to revive six patents on the heart medicine Vascepa.”

Supreme Court Rebuffs Cost-Sharing Reduction Payment Appeal; $20 Million For State-Based Marketplaces – On HealthAffairs.org, Katie Keith notes “that two August decisions by a three-judge panel of the Court of Appeals for the Federal Circuit will stand.”

• Consensus-Building Judge Taking the Reins at Federal Circuit – According to Perry Cooper at BloombergLaw.com, as the new Chief of the Federal Circuit, Judge Moore could try to bring the court together on sticky issues.
• Court Reverses Ruling Critics Said Left Feds Vulnerable to Retaliation, Citing ‘Magnitude’ of Errors – Eric Katz at GovernmentExecutive.com commented on a recent employment law decision by the Federal Circuit reversing the Merit Systems Protection Board.
• Australian Company Loses Ugg Trademark Battle – Yan Zhuang from the New York Times reported on a Federal Circuit trademark decision that reportedly “hits a nerve for Australians, who consider [Ugg] footwear a national, if unfashionable, symbol.”

Here is the latest.

• Good News for Patentees: Bipartisan NSCAI Invokes National Security in Calling for Legislation to Clarify Patent Eligibility – A recent report released by a bipartisan congressionally-established commission lends powerful support to Section 101 reform initiatives.
• Dish Rejected in Bid to Revive Data Compression Patent Challenge – The Federal Circuit refused to jump-start a patent challenge after the Patent Trial and Appeal Board found that the challenge was time-barred.
• Method for Determining Haplotype Phase Found Subject Matter Ineligible – Applying the Alice framework, the Federal Circuit emphasized that a mathematical or scientific algorithm, without more innovation or improvement, is patent ineligible.

Here’s the latest.