FedCircuitBlog

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 how the Federal Circuit extended the suspension of 97-year-old Judge Pauline Newman for another year, citing “serious concerns about Judge Newman’s cognitive state” and her refusal to comply with the ongoing fitness investigation;
• a blog post highlighting the possible impact of the bipartisan Patent Eligibility Restoration Act, introduced in Congress this term, on U.S. patent law; and
• an article discussing the evolving nature of standing in patent infringement cases in light of a recent Federal Court decision.

Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. With respect to granted cases, an amicus brief was filed in support of petitioner in Rudisill v. McDonough, a veterans case. With respect to petitions, three new petitions were filed in a veterans case, a patent case, and a pro se case. Additionally, two reply briefs were filed in two different cases, one concerning the jurisdiction of the Court of International Trade and one concerning patent eligibility. 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 discussing a “bill introduced Tuesday by Sen. Thom Tillis, R-N.C., aimed at setting more precise rules on which inventions are eligible for patents”;
• another article explaining how the bill “clearly is intended to overrule” the Supreme Court’s recent cases addressing patent eligibility;
• a blog post addressing how “the PTO [will] be revisiting the test for patent subject matter eligibility”; and
• an article discussing a case before the Federal Circuit that involves “a shoemaking process with major implications for both the industry and patent law.”

This morning, the Supreme Court denied the petition for certiorari in American Axle & Manufacturing, Inc. v. Neapco Holdings LLC, an important patent eligibility case decided by the Federal Circuit in 2019. In this case, the petitioner requested the Supreme Court grant review to reconsider the appropriate standard for determining patent eligibility and to determine whether eligibility is a question of law or fact. The Solicitor General previously recommended the Court grant review to reconsider the first question presented, addressing the appropriate standard for determining eligibility. But today the Court denied the petition.

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

• an article analyzing Judge Stark’s 2018 ruling as a district judge in an important patent eligibility case and how it might portend his analysis of patent eligibility as a judge on the Federal Circuit; and
• a blog post and an article discussing how the Federal Circuit recently addressed estoppel as a result of inter partes review.

Guest Post by Greg Reilly

For over a decade, patent litigation has been surprisingly concentrated in a single federal district court. At one time, almost half of the nation’s patent litigation occurred in small towns in eastern Texas.1 Now, 20% of patent litigation occurs before a single judge based in Waco, Texas.2 This concentration of patent litigation is not the result of the inherent characteristics of these districts but instead of the affirmative efforts of particular judges to attract patent cases to their courthouses.3 Scholarly commentary of this forum selling and patent litigation concentration, including by myself, has been largely critical.4 The primary objection is that the districts and judges competing for patent litigation improperly skew procedures in favor of the patentees who make the forum choice.5

Today we highlight four recent papers related to the Federal Circuit. The first, co-authored by retired Federal Circuit Chief Judge Paul Michel, focuses on the transformation of the U.S. patent system over the past fifteen years. The second analyzes the justiciability of litigation upon the invalidation of patents. The third reviews the Federal Circuit’s patent eligibility decisions in the seven years following the Supreme Court’s decision in Alice v. CLS Bank. The fourth examines the availability of Federal Circuit decisions. Here are more details on these papers.

Guest post by Saurabh Vishnubhakat

As the Transitional Program for Covered Business Method (“CBM”) Review reaches its sunset date, it is useful to consider the design and implementation of this program and what lessons can be drawn from its eight-year run. Of particular interest are two unusual aspects of CBM review that have interacted with each other in instructive ways.

• Federal Circuit Hearing More Cases by Phone – The Federal Circuit will increase the number of arguments it hears via phone next month.
• Bad Conduct During Litigation Means Attorneys’ Fees Regardless of Damage Amount – The Federal Circuit disagrees with lowering an award of attorney fees based on a lesser damages award.
• COVID-19 Underscores Diagnostic Patent Eligibility Problems – What is the impact of recent judicial precedent on diagnostic methods?

Here’s the latest.

Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. As for merits cases, highlights include an oral argument and a slew of amicus briefs, respectively, in two cases. As for petitions, only one new petition was filed, and just a handful of response and reply briefs were filed. The Supreme Court, however, denied petitions in a large number of cases, including most notably in Athena, Hikma, and HP, as we previously discussed. Here are the details.