FedCircuitBlog

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 top patent cases to watch in the second half of 2022;
• another article highlighting how a petition for a writ of certiorari claimed that a Federal Circuit decision “would upend the legal rules governing the modern prescription-drug marketplace”; and
• a third article urging that the question of whether artificial intelligence can be an inventor under patent law “is one for Congress, not the courts, to address.”

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 since our last update. With respect to petition cases, four new petitions were filed with the Court in two patent cases, a takings case, and a pro se case; reply briefs in support of petitions were submitted in a patent case and a case involving application of the Equal Access to Justice Act; and an amicus brief was filed in a patent case. 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:

• a blog post examining how “opinions in regular [Federal Circuit] appeals are more than twice as likely to be precedential than orders” on petitions for mandamus related to venue;
• an article discussing how “the Federal Circuit over the past decade has adopted more stringent standards for meeting the [Patent Act’s] dictates that patents provide a clear written description, and enable others to understand the invention”; and
• another article discussing how, after the Supreme Court’s recent denial of certiorari in American Axle & Manufacturing, Inc. v. Neapco Holdings LLC, “[p]atent eligibility in America is a train wreck.”

Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. With respect to granted cases, the Court set a date for oral argument in Arellano v. McDonough, a veterans case raising questions about equitable tolling of a veterans benefits filing deadline. With respect to petition cases, two new petitions were filed in patent cases; a waiver of right to respond was filed in a veterans case; three amicus briefs were filed in another veterans case; and the Court denied two petitions, one in a patent case and one in a federal employment case. Here are the details.

Here is an update on recent en banc activity at the Federal Circuit in patent cases. The court received four new petitions raising questions related to the scope of usable prior art in inter partes review proceedings, motivation to combine prior art references, and the presumption of nexus in a non-obviousness analysis. The court received a response to a petition raising questions related to claim construction and a response to a motion to expedite issuance of the mandate in a case raising questions related to choice of law, forum selection clauses, and injunctive relief. The court also invited a response to the petition already mentioned that raised a question related to motivation to combine prior art references. Finally, the court denied three petitions raising questions related to claim construction and the written description requirement. Here are the details.

This morning the Federal Circuit issued a precedential order in a patent case denying panel rehearing and rehearing en banc. Notably, Judge Lourie dissented from the denial of rehearing en banc, and his opinion was joined by Chief Judge Moore and Judge Newman. In the dissenting judges’ view, the panel decision confused patent law’s written description requirement. In addition to this order, the court also issued a nonprecedential opinion in a case appealed from the Court of Federal Claims concerning attorneys’ fees. Finally, late yesterday the court issued a nonprecedential order concerning a voluntary dismissal. Here are the introductions to the order and opinions.

Here is an update on recent en banc activity at the Federal Circuit in patent cases. The court received a new petition raising questions related to assignments of patents and standing and a new response to a petition raising questions related to claim construction and the written description requirement. The court also requested a reply from a petitioner in support of its combined petition, which raised questions related to the Appointments Clause. Finally, the court denied two petition raising questions related to the standard of review for a grant or denial of a preliminary injunction and claim construction. Here are the details.

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

Here is an update on recent en banc activity at the Federal Circuit. Recently the Federal Circuit granted en banc review in one veterans case, and last week the en banc court heard oral argument in another veterans case. As for petitions for en banc review in patent cases, the court invited a response to a petition raising a question related to claim construction. The court also received three new responses to petitions raising questions related to the Appointments Clause, claim construction, and the written description requirement. Finally, the court denied a petition raising questions related to the inducement doctrine’s interaction with the Hatch-Waxman Amendments. Here are the details.

Here is an update on recent en banc activity at the Federal Circuit. Last week the court granted en banc reharing in a veteran’s case, and tomorrow the en banc court will hear oral argument in another veteran’s case. As for patent cases, the court received two new responses to petitions raising questions related to the Appointments Clause and the written description requirement, and the court invited a response to a petition raising questions related to conflicts of interest and due process. Finally, in another patent case the court received a new amicus brief supporting a petition raising a question related to claim construction. Here are the details.