En Banc Activity / Petitions

Recent En Banc Activity

Here is an update on recent en banc activity at the Federal Circuit in patent cases. The court received a response to a petition raising a question related to the ability of a Federal Circuit panel to nullify or render advisory an earlier judgment of the court. The court also received an amicus brief supporting rehearing in a case raising questions related to the Federal Vacancies Reform Act and the grounds for inter partes review. Finally, the court denied a petition in a case raising questions related to the court’s grant of a petition for a writ of mandamus to order transfer of a case from the Western District of Texas to the Northern District of California. Here are the details.

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News

Recent News on the Federal Circuit

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

  • an article noting how a “[f]ederal judge sitting atop mound of patent litigation loses perch with equitable-distribution order”;
  • another article addressing how “Netflix [won] attorneys’ fees for California litigation at Federal Circuit”;
  • a third article discussing how an engineer filed an amicus brief critiquing a Federal Circuit decision that would allegedly “let federal agencies ‘cut corners’ and render public accountability ‘superfluous.’”
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En Banc Activity / Petitions

Recent En Banc Activity

Here is an update on recent en banc activity at the Federal Circuit. In a pending en banc veterans case, the court received two amicus briefs in support of the appellee, a veteran. The court also received two new petitions raising questions related to obviousness-based inherency of claims, the Federal Vacancies Reform Act, and the grounds for inter partes review proceedings. Finally, the court denied two petitions for rehearing en banc raising questions related to means-plus-function limitations. Here are the details.

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News

Recent News on the Federal Circuit

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

  • an article explaining how the Supreme Court is the “only entity that appears positioned to provide . . . clarity” on patent eligibility;
  • another article discussing how the Federal Circuit affirmed the review power of the temporary head of the Patent and Trademark Office, “sparing the agency from potentially devastating consequences”; and
  • a third article addressing how the Federal Circuit reaffirmed that a patentee has “the burden to offer opposing evidence against the petitioner’s claim” in Patent Trial and Appeal Board proceedings.
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Opinions

Opinions & Order – May 27, 2022

This morning the Federal Circuit released a precedential opinion in Arthrex, Inc. v. Smith & Nephew, Inc., a patent case on remand from the Supreme Court. In its opinion, the Federal Circuit affirmed both a decision of the Patent Trial and Appeal Board finding claims unpatentable as anticipated and a denial of a request to review the Board’s decision, a denial decided by the Commissioner for Patents given vacancies in the positions of Director and Deputy Director of the U.S. Patent and Trademark Office. Here is the introduction to the opinion.

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Featured / Symposia

Online Symposium: A Former Insider’s Reflections on the USPTO, the PTAB, and the Arthrex Decision

Guest Post by Dr. Christal Sheppard

I am a patent law expert. However, a look at recent machinations in patent law, particularly in the United States Patent and Trademark Office’s (USPTO) leadership and the USPTO’s Patent Trial and Appeals Board (PTAB), reveals that many of the issues at the heart of patent law disputes stem from the Administrative Procedures Act (APA), administrative law, constitutional law, and, of course, politics, politics, politics. As a patent expert, I have found myself talking about the APA so often that I unconsciously write Administrative Patent Act by mistake. The United States Supreme Court decision in Arthrex, regarding the composition of PTAB, is the most recent foray into the intersection of administrative law and patent law.1

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Featured / Symposia

Online Symposium: The PTAB, The Director, and The Federal Circuit

Guest Post by Jason Rantanen

In its 2021 Arthrex decision, the Supreme Court rewrote the procedural process that Congress created for reviewing decisions by Patent Trial and Appeal Board (PTAB) judges.1 Rather than directly appealing to the Federal Circuit (or filing an action in the Eastern District of Virginia), a party that is dissatisfied with the outcome at the PTAB can petition the Director of the United States Patent and Trademark Office (the Director) for rehearing.2 This post summarizes some of my thoughts on the effects of Arthrex on PTAB decision-making, especially when PTAB decisions are appealed to the Federal Circuit. Overall, I’m skeptical that Arthrex presents a great opportunity for the Director to engage in patent policymaking. Given the way that United States Patent and Trademark Office (PTO) review is structured, there’s relatively little room for the Director to engage in policy-shaping through review of PTAB decisions. There are many other ways in which the Director can influence patent policy, and these are likely to be more promising paths than exercising direct oversight over individual PTAB decisions.

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Featured / Symposia

Online Symposium: Arthrex and the Politics of Patents

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.

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News

Recent News on the Federal Circuit

CAFC Affirms Improper Venue Ruling in Victoria’s Secrets’ Favor – On IPWatchDog, Matthew Schutte posted an article reporting on a Federal Circuit decision to affirm the grant of a motion to dismiss a patent infringement suit based on improper venue.

Judge Albright will Keep the Google and Apple Cases – In a post on PatentlyO.com, Dennis Crouch offers his thoughts on the Federal Circuit’s recent decision not to order Judge Albright to transfer certain patent cases.

Arthrex-Based TTAB Challenge Meets Dubious Federal Circuit Panel – Kyle Jahner reports for Bloomberg that “[a] piano company trying to revive its trademark encountered a Federal Circuit skeptical of its argument.”

Shell, ARCO, Texaco, Unocal Win $100 Million WWII Cleanup Appeal – In this article on BloombergLaw.com, Daniel Seiden reports on the Federal Circuit’s ruling in Shell Oil Co. v. United States.

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News

Recent News on the Federal Circuit

The Arthrex Fix Is No Fix At All – In an article posted on iam-media.com, Paul Morinville reports that “[t]he long-awaited SCOTUS Arthrex decision does not provide the solution to the problem at the heart of the case.”

Texas Court Bounces Triller/TikTok Patent Dispute to California – Chris Cooke wrote an article on completemusicupdate.com reporting about how a Texas district judge sent a patent case between Triller and TikTok to the courts in California, perhaps due to criticism by the Federal Circuit.

Are 5% of All U.S. Issued Patents Presumed to Be Unenforceable Under Laches Due to Their Priority Claims? – On IPWatchDog.com, Kate Gaudry reports on the “potential impacts” of the recent Federal Circuit case Hyatt v Hirshfeld concerning prosecution laches.

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