FedCircuitBlog

This morning the Federal Circuit released two precedential opinions and one nonprecedential opinion. The first precedential opinion comes in a contract case and reverses and remands a final decision of the Court of Federal Claims. The second precedential opinion comes in a tax case “involv[ing] the procedural mechanisms for filing a tax refund for penalties under the Internal Revenue Code.” The nonprecedential opinion affirms-in-part, reverses-in-part, and dismisses-in-part a case addressing allegedl federal trade dress infringement and federal trademark liability for false designation of origin under the Lanham Act. Here are the introductions to the opinions.

Guest Post by Gregory C. Sisk

In this blog post, I discuss Court of Federal Claims/Tucker Act decisions by the Federal Circuit on (1) the requirement of a money-mandating statute for statutory-based money claims, (2) whether a money-mandating requirement applies as well to claims to recover illegal exactions, (3) the special case of a breach of trust claim under the Indian Tucker Act, and (4) the continued availability of a Tucker Act taking claim even when a claim could alternatively be framed in tort. These 2020 Federal Circuit decisions affirmed the continued stability of Court of Federal Claims jurisdiction through careful application and welcome clarification and extension of established and common-sense Tucker Act doctrines.

Here is this month’s update on activity in cases pending before panels of the Federal Circuit where the cases involve at least one amicus brief. We keep track of these cases in the “Other Cases” section of our blog. Today, with respect to these cases we highlight two dispositions, one new patent case, and new briefing in another patent case. Here are the details.

Last week, the Federal Circuit decided Boeing Co. v. Secretary of the Air Force, a government contract case we have been following because it attracted an amicus brief. Judge Lourie authored a unanimous panel opinion reversing a denial of summary judgment by the Armed Services Board of Contract Appeals, vacating the Board’s entry of final judgment, and remanding. In particular, the Federal Circuit agreed with Boeing’s interpretation of a clause of the Defense Federal Acquisition Regulation Supplement as permitting marking of technical data provided to the government in a way that protects rights against use by third parties. This is our opinion summary.

This morning, the Federal Circuit issued a precedential opinion in a case appealed from the Merit Systems Protection Board, a precedential opinion in a case appealed from the Armed Services Board of Contract Appeals, and a precedential opinion in a veterans case. The Federal Circuit also issued two nonprecedential opinions in a veterans case and a patent case. Here are the introductions to the opinions.

Here is this month’s update on activity in cases pending before panels of the Federal Circuit where the cases involve at least one amicus brief. We keep track of these cases in the “Other Cases” section of our blog. Today, with respect to these cases we highlight one disposition in a veterans case, new briefs filed in two patent cases raising due process questions related to post grant review proceedings, four recent oral arguments in veterans and government contracts cases, and four upcoming oral arguments in patent, veterans, and takings cases.

Yesterday, the Federal Circuit also heard oral argument in Boeing Co. v. Secretary of the Air Force. We have been following this case because it attracted an amicus brief. In it, the court is considering 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 recap.

This week the Federal Circuit will convene fifteen panels to consider about 64 cases. This month, as in the past several months, the court will hear all of its oral arguments telephonically given the coronavirus pandemic. Of the 64 cases, the court will hear oral arguments in 42. Of these argued cases, four attracted amicus briefs: one in a government contract case and three in veterans cases. Here’s what you need to know about these cases.

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.

Here is this month’s update on activity in cases pending before panels of the Federal Circuit where the cases involve at least one amicus brief. We keep track of these cases in the “Other Cases” section of our blog. Today, with respect to these cases we highlight three dispositions in patent cases addressing estoppel related to inter partes review, anticipation, and induced infringement; new briefing in another patent case related to standing; one recent oral argument in a patent case addressing personal jurisdiction; and four upcoming oral arguments in veterans and government contracts cases.