FedCircuitBlog

Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. With respect to granted cases, since our last update there is no new activity to report. With respect to petitions, two new petitions have been filed, both in patent cases. In addition, five amicus briefs were submitted in a case presenting a challenge to the Chevron doctrine. Also, the government waived its right right to respond in a pro se case. Here are the details.

This morning the Federal Circuit issued two precedential opinions. The first comes in a patent case and concerns a district court’s refusal to seal certain documents. Notably, Judge Mayer wrote an opinion dissenting from the majority’s decision to vacate and remand the case. The second comes in a government contract case. The court also issued three nonprecedential opinions in employment and veterans cases. Finally, the court released a precedential order transferring an employment case to the District of Maryland. Here are the introductions to the opinions and order.

Guest Post by Jason Rantanen

In its 2021 Arthrex decision, the Supreme Court rewrote the procedural process that Congress created for reviewing decisions by Patent Trial and Appeal Board (PTAB) judges.1 Rather than directly appealing to the Federal Circuit (or filing an action in the Eastern District of Virginia), a party that is dissatisfied with the outcome at the PTAB can petition the Director of the United States Patent and Trademark Office (the Director) for rehearing.2 This post summarizes some of my thoughts on the effects of Arthrex on PTAB decision-making, especially when PTAB decisions are appealed to the Federal Circuit. Overall, I’m skeptical that Arthrex presents a great opportunity for the Director to engage in patent policymaking. Given the way that United States Patent and Trademark Office (PTO) review is structured, there’s relatively little room for the Director to engage in policy-shaping through review of PTAB decisions. There are many other ways in which the Director can influence patent policy, and these are likely to be more promising paths than exercising direct oversight over individual PTAB decisions.

This morning the Federal Circuit issued a precedential opinion in a trade case appealed from the Court of International Trade. The lower court applied an adverse inference against an importer regarding subsidies it had received due to the government of China’s lack of cooperation in the Department of Commerce’s investigation of the imported goods. The Federal Circuit’s opinion affirms the lower court’s application of the adverse inference. Here is the introduction to the opinion.  

Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. With respect to the Supreme Court’s October 2021 term, since our last update the Court has not granted any new petitions. Three new petitions, however, have since been filed: two in patent cases and one filed by a pro se petitioner. Additionally, a waiver of right to respond to one of the three new petitions was filed, and a brief in opposition was filed in a case that raises a question regarding Article III standing in a series of patent appeals. Here are the details.

Earlier this month the Federal Circuit heard oral argument in Milton v. United States, a case arising from the Court of Federal Claims. We have been following this case because it attracted an amicus brief. In this case, 150 plaintiffs are appealing a grant of summary judgment for the United States. These plaintiffs-appellants have asserted takings claims against the federal government based on properties that were flooded as a result of government action when the Addicks and Barker Reservoirs released water during Hurricane Harvey. The amicus brief was filed by 205 other plaintiffs with similar cases that have been stayed by the Court of Federal Claims. Judges Lourie, Chen, and Cunningham heard the argument. This is our argument recap.

Here is this month’s 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. Today, with respect to these cases we highlight an opinion in a tax case addressing subject matter jurisdiction and “duly filed” requirements, a new patent case about prosecution laches that attracted an amicus brief, and an upcoming oral argument in a case appealed from the Patent Trial and Appeal Board. Here are the details.

This morning the Federal Circuit issued a precedential opinion in a patent case appealed from the International Trade Commission. The Federal Circuit vacated a judgment based on a claim construction adopted by the International Trade Commission and remanded the case. The court also issued a Rule 36 judgment. Here is the introduction to the opinion and a link to the Rule 36 judgment.

Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. With respect to the Supreme Court’s October 2021 term, the Court granted certiorari in a veterans case. The Court also requested the Solicitor General to file a brief expressing the views of the United States in a patent case. No new petitions were filed, but one amicus brief was submitted in support of a petition in a patent case and a waiver of right to respond was filed in a pro se case. Additionally, the Court denied four petitions: two in patent cases and two in pro se cases. Here are the details.

This morning the Federal Circuit issued three precedential opinions. The first comes in a veterans case appealed from the Court of Appeals for Veterans Claims; the second comes in a takings case appealed from the Court of Federal Claims; and the third comes in a military discharge case appealed from the Court of Federal Claims. The Court also issued five nonprecedential opinions in various cases appealed from the Court of Federal Claims, the Merit Systems Protection Board, and the Court of Appeals for Veterans Claims. Here are the introductions to the opinions.