FedCircuitBlog

Here is an update on recent en banc activity at the Federal Circuit in patent cases. Last week the Federal Circuit heard oral argument in one of the two pending en banc cases. With respect to pending petitions, two new petitions have been filed and the court denied one petition. One of the new petitions raises a question regarding claim construction; the other new petition raises 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 be the basis for an inter partes review proceeding. The petition that was denied raised a question regarding apportionment of damages for patent infringement. Here are the details.

This morning, the Federal Circuit released one precedential opinion and four nonprecedential opinions. The lone precedential opinion comes in a patent case on appeal from the Northern District of West Virginia. Of the nonprecedential opinions, two come in patent cases on appeal from the Patent Trial and Appeal Board, one comes in a case on appeal from the Merit Systems Protection Board, and the other comes in a veterans case. Here are the introductions to the opinions.

Late yesterday, the Federal Circuit released a nonprecedential order dismissing a case. This morning the Federal Circuit released one precedential opinion, four nonprecedential opinions, and seven nonprecedential orders. The lone precedential opinion comes in a patent case on appeal from the Northern District of West Virginia. Of the nonprecedential opinions, three come in patent cases, and one comes in a government contract case. Of the nonprecedential orders released today, three address notices of non-participation in appeals from the Patent Trial and Appeal Board, and among other things these orders ask the U.S. Patent and Trademark Office whether it will intervene in the appeals to defend the PTAB’s decisions. Two of the other nonprecedential orders grant summary affirmance, while two dismiss appeals. Here are the introductions to the opinions and the orders addressing the notices of non-participation in appeals, as well as links to the grants of summary affirmance and dismissals.

Here is an update on activity in cases pending before panels of the Federal Circuit where the case involves 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 a new opinion in a patent case raising a question related to what prior art may be considered during an inter partes review proceeding; four recent oral arguments in two trade and two takings cases; four new cases, including a federal personnel case, a government contract case, a trademark case, and a trade case. Here are the details.

Last week the Federal Circuit issued its opinion in Lynk Labs, Inc. v. Samsung Electronics Co., a patent case that we have been watching because it attracted four amicus briefs. In this case, the Federal Circuit reviewed an appeal from a decision of the Patent Trial and Appeal Board in an inter partes review proceeding that certain patent claims are unpatentable in light of prior art. The oral argument focused on “whether the Board erred in determining that . . . a published and later abandoned U.S. patent application . . . can be applied in an IPR as a ‘printed publication’ under 35 U.S.C. § 311(b).” That statutory subsection says that “a petitioner in an inter partes review may request to cancel as unpatentable 1 or more claims of a patent . . . only on the basis of prior art consisting of patents or printed publications.” What the appellant and one amicus brief argued is that a patent application that never issues as a patent is not a patent nor does it qualify as a printed publication when its publication date is after the effective filing date of the patent subject to the inter partes review proceeding. The Federal Circuit, however, in an opinion authored by Judge Prost and joined by Judge Lourie and Judge Stark, affirmed the Board. It found no error in the Board’s unpatentability determinations using, as the relevant date for prior art purposes, the abandoned patent application’s filing date. 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:

• a news alert reporting how “Dish Network LLC asked the U.S. Supreme Court to review whether courts can require attorneys to pay legal fees in exceptionally frivolous patent cases”;
• a blog post analyzing a recent Federal Circuit decision where the central issue in the case “revolved around the interpretation of [35 U.S.C.] § 311(b)’s limitation that [inter partes review] challenges may be based only on ‘prior art consisting of patents or printed publications’”; and
• an article covering how the Federal Circuit recently affirmed a Trademark Trial and Appeal Board decision “canceling trademarks claiming protection for the pink color of ceramic hip components.”

This morning the Federal Circuit released one precedential opinion, three nonprecedential opinions, eight nonprecedential orders, and one Rule 36 summary affirmance. The precedential opinion comes in a patent case appealed from the Patent Trial and Appeal Board. The nonprecedential opinions come in two patent cases and one pro se case. Of the nonprecedential orders, one grants a motion for summary judgment; three transfer cases; and four dismiss appeals. Here are the introductions to the opinions and orders and a link to the summary affirmance.

Last week, the Federal Circuit heard oral argument in Lynk Labs, Inc. v. Samsung Electronics Co., a patent case that attracted four amicus briefs. In this case, the Federal Circuit is reviewing a judgment of the Patent Trial and Appeal Board in an inter partes review proceeding, which found all challenged patent claims unpatentable. The argument focused on the fourth issue presented, “whether the Board erred in determining that . . . a published and later abandoned U.S. patent application . . . can be applied in an IPR as a ‘printed publication’ under 35 U.S.C. § 311(b).” That statutory subsection says that “a petitioner in an inter partes review may request to cancel as unpatentable 1 or more claims of a patent . . . only on the basis of prior art consisting of patents or printed publications.” What the appellant and one amicus brief argue is that a patent application that never issues as a patent is not a patent nor does it qualify as a printed publication when its publication date is after the effective filing date of the patent subject to the inter partes review proceeding. Judge Lourie, Prost, and Stark heard the oral argument. This is our argument recap.

Yesterday evening, the Federal Circuit released two nonprecedential opinions, two orders, and three Rule 36 judgments. The first nonprecedential opinion comes in a patent case appealed from the Central District of California, while the second comes in a case appealed from the Merit Systems Protection Board. The orders are dismissals. Here are the introductions to the opinions, links to the Rule 36 judgments, and 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 reporting how the Federal Circuit heard “arguments at law schools and courthouses around the San Francisco Bay Area this week”;
• an article highlighting “the intense debate over restoring injunctive relief for patent holders,” noting how “two different camps within the pro-strong-patent rights community have emerged”;
• an article discussing yesterday’s oral argument in a case addressing whether inter partes review proceedings may consider abandoned patent applications published after the filing date of a patent under review; and
• a blog post discussing how the Patent Office “recently terminated proceedings in approximately 3,100 patent applications due to the fraudulent use of a practitioner’s signature.”