FedCircuitBlog

Here is an update on recent en banc activity at the Federal Circuit in patent cases. Highlights include new responses to three petitions raising questions relating to the authority of the International Trade Commission, the statutory experimental use exception to infringement liability, and the use of comparable licenses to calculate damages awards. The court also received two new amicus briefs supporting a petition relating to attorney fees and invited a response to the same petition. Finally, the court denied three petitions raising issues related to design patent law’s nonobviousness requirement, the statutory experimental use exception to infringement liability, and personal jurisdiction. Here are the details.

This morning the Federal Circuit released two nonprecedential orders. Both orders are dismissals. Additionally, late in the day on Friday the Federal Circuit released an additional nonprecedential order vacating a panel opinion and, among other things, remanding the case to the Patent Trial and Appeal Board. Here is the introduction to Friday’s nonprecedential order as well as links to the dismissals.

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

• an article reflecting on the first five months of the Federal Circuits’s precedential rulings in patent cases in 2024; and
• an article expressing the opinion that a new rule proposed by the U.S. Patent and Trademark Office would seriously harm U.S. inventors.

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

• an article expressing the opinion that the Federal Circuit’s effort to clarify design patent law in LKQ Corporation v. GM Global Technology Operations LLC “utterly failed”; and
• an article suggesting a Federal Circuit case is “set to shape false advertising law.”

Late last month the Federal Circuit issued its opinion in LKQ Corporation v. GM Global Technology Operations LLC, a design patent case that attracted eighteen amicus briefs. In this case, the en banc court reviewed the continuing vitality of the so-called Rosen-Durling test to asses nonobviousness of design patents. In an opinion authored by Judge Stoll, the en banc court overruled the cases using that test and adopted in its place a new approach for assessing nonobviousness of design patents. Notably, Judge Lourie filed a concurring opinion. This is our opinion summary.

Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today’s report highlights two articles discussing the Federal Circuit’s recent en banc decision changing the court’s interpretation of design patent law’s nonobviousness requirement, along with a memorandum from the U.S. Patent and Trademark Office addressing the same decision:

• an article detailing the effects that the Federal Circuit’s decision will have on design patent challenges;
• another article discussing how the new test has created uncertainty over what’s obvious; and
• a memorandum from the U.S. Patent and Trademark Office entitled “Updated Guidance and Examination Instructions for Making a Determination of Obviousness in Designs in Light of LKQ Corporation v. GM Global Technology Operations LLC.“

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

• an article reporting on the Federal Circuit’s biennial judicial conference in which six Federal Circuit judges “appeared on a panel . . . to discuss best-and worst-practices” used by appellate litigators in court; and
• an article discussing implications of the Federal Circuit’s recent elimination of its historical test for design patent law’s nonobviousness requirement; and
• another article reporting on the Federal Circuit’s biennial judicial conference in which Chief Justice Roberts spoke about “the Federal Circuit’s own important role in deciding intellectual property disputes, from copyrights to patents.”

This morning the Federal Circuit released two precedential opinions, four nonprecedential opinions, and one nonprecedential order. The first precedential opinion comes in an en banc design patent case. In it, the en banc court overruled the long-standing Rosen-Durling test used to assess the nonobviousness of design patents. Notably, Judge Lourie concurred in the judgment, suggesting it was unnecessary to overrule Rosen and Durling. In the second precedential opinion, a panel vacated and remanded a judgment of Central District Court of California in a patent infringement case over a dissent by Judge Mayer. As for the nonprecedential opinions, the first affirms two separate dismissals by the Merit Systems Protection Board in a pro se case, the second affirms a judgment of the Patent Trial and Appeal Board, the third dismisses an appeal in a veterans case for lack of jurisdiction, and the fourth affirms another dismissal by the Merit Systems Protection Board for lack of jurisdiction. The nonprecedential order is a dismissal. Here are the introductions to the opinions and links to the orders.

Today the Federal Circuit issued an en banc opinion in LKQ Corporation v. GM Global Technology Operations LLC, a design patent case. In the opinion, the en banc court overruled the long-standing Rosen-Durling test used to assess the nonobviousness of design patents. The court decided to apply “the same conditions for patentability that apply to utility patents.” Notably, Judge Lourie concurred in the judgment, suggesting it was unnecessary to overrule Rosen and Durling. Here is the introduction to the majority opinion. We will post an opinion summary later this week.

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

• an article discussing “what’s at stake in pending Federal Circuit design patent case”;
• an article highlighting a recent notice by the USPTO published in the Federal Register “providing updated guidance for agency decision-makers on proper determinations of obviousness under the U.S. Supreme Court’s 2007 ruling in KSR International Co. v. Teleflex Inc.”; and
• an article about how “[t]he Federal Circuit reversed a district court judge’s dismissal of a breach-of-contract lawsuit against MasterCard International Inc. over a licensing agreement the company entered with patent owner AlexSam Inc.”