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 three new petitions raising questions related to the inducement doctrine’s interaction with Hatch-Waxman Amendments, the Patent Trial and Appeal Board’s analysis of the non-obviousness requirement, and venue. The court also denied two petitions for rehearing en banc raising questions related to anticipation, the evidentiary basis of an invalidity finding, and the proper standard of review of agency determinations. 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 predicting how a recent Federal Circuit decision [will] likely provide a route for judges and plaintiffs in patent cases to circumvent an international treaty that creates hurdles when serving complaints on foreign defendants”;
  • an article analyzing “the unsettled and contentions nature of [patent] infringement in the skinny-label context”; and
  • an article report discussing how last week the Federal Circuit issued an order “forcing U.S. District Judge Alan Albright to move [a] patent dispute . . . from his court in Waco, Texas, . . . to Northern California.”
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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 discussing the filing of an amicus brief in the aftermath of the Federal Circuit’s recent treatment of “skinny labels;”
  • a conversation about President Biden’s potential federal court nominations based on previous picks and patterns; and
  • an article discussing how steel importers are urging the Federal Circuit to reverse a panel decision upholding levies on steel imports.
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Opinions / Panel Activity

Opinion Summary – GlaxoSmithKline LLC v. Teva Pharmaceuticals USA, Inc.

On August 5 the Federal Circuit issued a new panel opinion in GlaxoSmithKline LLC v. Teva Pharmaceuticals USA, Inc., a case we have been following because it attracted numerous amicus briefs. Chief Judge Moore and Judges Newman and Prost formed the panel hearing this case. The court’s new opinion was filed per curiam, with Judge Prost authoring a dissent. In the new opinion, the court again vacated a district court’s grant of judgment as a matter of law “because substantial evidence supports the jury’s verdict of induced infringement.” Furthermore, as before, the panel reinstated the jury’s damages award “because the district court did not err in its jury instructions on damages.” But the new panel opinion is most notable because it addresses the arguments made in the amicus briefs supporting rehearing. Those amicus briefs argued that the panel’s original opinion “could be read to upset the careful balance struck with . . . carve-outs” in the context of Hatch-Waxman. Indeed, the case involved an alleged, so-called “skinny label,” a label that omits language indicating infringing use. In the panel’s new opinion, the majority maintained that its “narrow, case-specific review of substantial evidence does not upset the careful balance struck by the Hatch-Waxman Act regarding [such] carve-outs.” Here we provide the court’s description of the background of the case, a summary of the court’s analysis, and relevant parts of Judge Prost’s dissent. 

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Panel Activity

Update on Important Panel Activity

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 six dispositions, one new case, one case with new briefing, and one oral argument recap. Here are the details.

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News

Recent News on the Federal Circuit

Federal Circuit Upholds Teva-GlaxoSmithKline Decision, Landing Another Blow to ‘Skinny’ Labels – On EndPointsNews, Zachary Brennan wrote about the Federal Circuit’s most recent disposition in the case GlaxoSmithKline LLC v. Teva Pharmaceuticals USA, Inc. and its impact on generic drug competition.

CAFC Again Says Teva Induced Infringement on Carvedilol, Assures Holding Narrowly Applies – Eileen McDermott also reports on GlaxoSmithKline LLC v. Teva Pharmaceuticals USA, Inc., noting that the Federal Circuit “underscored its October 2020 ruling.”

Fed Circ Upholds VA Cutoff On Resuming Disability Benefits – Barbara Grzincic wrote an article for Reuters explaining the Federal Circuit’s decision in Buffington v. McDonough.

Is the Federal Circuit Too Trigger-Happy Invalidating Means Claims? – This question is asked by Dennis Crouch on PatentlyO, where Crouch focuses on “an interesting petition to the Supreme Court focusing on indefiniteness and means-plus-function claims.”

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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 patent cases. The court received three petitions concerning issues related to transfer and petitions for writs of mandamus, inter partes review and deference to the Patent Trial and Appeal Board, and anticipation. The court also invited a response to a petition concerning the scope of appellate review. Lastly, the court denied a petition in a case concerning induced infringement and the Hatch-Waxman Amendments. Here are the details.

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News

Recent News on the Federal Circuit

Apple Must Face Apple Watch Patent Claims, Fed Circ. Affirms – Blake Brittain posted an article on Reuters.com about how Apple “lost its bid to escape patent infringement claims over its Apple Watch technology . . . at the U.S. Court of Appeals for the Federal Circuit.”

Teva’s Generic Label Not Skinny Enough to Protect from $234M Damages to GSK – In an article written by Khadijah M. Silver on MedCityNews.com, Silver reports that the Federal Circuit issued a “controversial” decision about Teva’s “skinny label.”

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Opinions

Opinions & Orders – August 5, 2021

This morning the Federal Circuit issued a precedential opinion in a patent case in which the court reinstated a jury verdict of infringement over a dissent by Judge Prost. The court also issued an erratum. Here is the introduction to the opinion and a link to the erratum.

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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 patent cases. While there were no recent petitions, responses to petitions, or denials of petitions, the court did receive several amicus briefs. One amicus brief came in Apple Inc. v. Qualcomm Inc., a case concerning the panel’s decision to deny competitor standing in an appeal from the Patent Trial and Appeal Board. Three came in Amgen Inc. v. Sanofi, Aventisub LLC, where the petition raised questions related to “the panel’s new enablement test for genus claims with functional limitations” and whether that test is consistent with Supreme Court precedent on point. Here are the details.

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