FedCircuitBlog

Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today we highlight:

• a blog post suggesting the Federal Circuit “established an important precedent regarding inherent disclosure and implicit claim construction” in a recent opinion issued in an appeal from an inter partes review proceeding;
• an article describing how the Federal Trade Commission is calling “on Teva, Novartis, Mylan and other drugmakers” to “remove patents from a key federal database that partially insulates their drugs from generic competition”;
• a report discussing a recent petition for en banc rehearing that argues a Federal Circuit opinion related to the domestic industry requirement for establishing jurisdiction of the International Trade Commission “overlooks the cardinal rule that statutory language must be read in context”; and
• an article discussing how “[t]welve states . . . urged a federal court to strike down President Donald Trump’s sweeping taxes on imports.”

Here is an update on recent en banc activity at the Federal Circuit in patent cases. Since our last update, the court issued an en banc opinion in a patent case. Additionally, three new en banc petitions were filed. The first raises claim construction questions; the second raises questions related to deference to the Office of Personnel Management; and the first was filed pro se. The Federal Circuit also invited a response to a petition raising a question related to collateral estoppel, and a new response was filed in opposition to an en banc brief. One amicus brief was also filed with the Federal Circuit. Lastly, the court recently denied five petitions for en banc rehearing. Here are the details.

Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. With respect to granted petitions, as we noted last week the Supreme Court recently held held oral argument in one case decided by the Federal Circuit and issued an opinion in another. With respect to pending petitions, the Court granted two petitions, vacated the judgments, and remanded the cases in light of the Court’s holding in a case originally decided by the Merit Systems Protection Board. Also, a new petition was filed in a patent case raising a question related to the ability of a court of appeals to revive a waived argument; a brief in opposition and a reply brief were filed in another patent case raising questions related to patent eligibility and Federal Circuit Rule 36; and a brief in opposition was filed in yet another patent case raising questions concerning so-called skinny labels. Finally, the Court denied two petitions, one raising questions related to ripeness of takings claims and the other raising a question related to the on-sale bar to patentability. Here are the details.

Here is an update on recent en banc activity at the Federal Circuit in patent cases. Since our last update, the court received a petition raising a question related to patent eligibility. The court also issued an invitation for a response to a petition raising a question regarding Article III jurisdiction to adjudicate patent infringement when the relevant patent has already expired. The court has also recently denied two petitions. The first denied petition raised a question concerning whether an abandoned patent application that becomes publicly available only after a challenged patent’s critical date is a printed publication that can form the basis for an inter partes review proceeding. The second denied petition raised questions concerning expert testimony to prove infringement of a means plus function element, claim construction, and the reverse doctrine of equivalents. Here are the details.

Here is an update on recent activity at the Supreme Court. With respect to granted cases, the respondent’s merits brief was filed in Soto v. United States, a veterans case. While no new petitions were filed, one new reply in support of a petition was filed in Celanese International Corp. v. International Trade Commission, a patent case addressing the on-sale bar. Here are the details.

Here is an 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. With respect to these cases, since our last update we highlight five new opinions, four in patent cases and one in a government contract case; two new argument recaps, one in a trademark case and one in a trade case; and three new cases, one a design patent case and two utility patent cases. Here are the details.

Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. With respect to granted cases, there is no new activity to report. With respect to petitions, new petitions were filed in a takings case and a pro se case. The Court also received waivers of the right to respond in five pro se cases; briefs in opposition in two patent cases; a supplemental brief in a case addressing Federal Circuit Rule 36; and two new amicus briefs in a patent case. In addition, the Court denied petitions in two patent cases and two cases addressing Rule 36. Here are the details.

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

• an article arguing that a recent decision by the Federal Circuit “may make defending patent infringement claims more challenging, time-consuming and expensive, but it also has unwittingly complicated similar patent infringement proceedings involving the same patents and their appeals”;
• a blog post suggesting that, in a recent decision related to agency deference, the Federal Circuit’s “approach to the analysis [was] wrong”;
• a piece reporting how “Commerce Secretary Howard Lutnick has decided to end all current appointments to both the Patent Public Advisory Committee (PPAC) and Trademark Public Advisory Committee (TPAC), effective immediately”; and
• an article suggesting a recent decision by the Federal Circuit “expands which intellectual property (IP) owners can seek relief before the U.S. International Trade Commission (ITC) to block the import of infringing products into the U.S.”

Earlier this month the Federal Circuit also released its opinion in AliveCor, Inc. v. International Trade Commission, a patent case that we have been following because it attracted several amicus briefs. In this case, the Federal Circuit was asked to review a judgment of the International Trade Commission in a patent infringement case that resulted in a limited exclusion order restricting importation of Apple’s watch products. In a per curium opinion issued by a panel including Judges Hughes, Linn, and Stark, however, the Federal Circuit vacated the Commission’s decision and remanded the case with instructions to dismiss the case as moot. This is our opinion summary.

This morning, the Federal Circuit released one precedential opinion and five nonprecedential orders. The lone nonprecedential opinion comes an appeal from a decision of the International Trade Commission. Of the nonprecedential orders, three transfer cases and two dismiss appeals. Here is the introduction to the opinion and links to the orders.