Here is an update on recent en banc activity at the Federal Circuit in patent cases. Notably, much of the activity relates in some way to Arthrex, Inc. v. Smith & Nephew, Inc. Highlights include three new petitions (including two petitions raising questions related to waiver of arguments similar to those made in Arthrex), a response in opposition to a petition also making arguments raised in Arthrex, briefing on a motion raising arguments related to Arthrex, requests for responses in three cases (including, notably, Arthrex itself), and the denial of two petitions raising questions related to patent eligibility. Here are the details.
Last week the Federal Circuit heard three cases that attracted amicus briefs. In the first of these three cases, Dragon Intellectual Property v. Dish Network LLC, Dish Network and Sirius XM Radio presented three questions to the court. As we noted in our argument preview, all three questions revolve around the district court’s finding that they were not prevailing parties and therefore not entitled to attorneys’ fees. The district court reached these conclusions after determining the case had become moot as a result of the Patent Trial and Appeal Board’s cancellation of the underlying patent-in-suit. On Tuesday, Dish Network and Sirius XM Radio, along with the appellee’s attorney (representing himself, his co-counsel, and his firm), presented their arguments to a panel that included Judges Lourie, Moore, and Stoll. This is our argument recap.
Here is an update on recent en banc activity at the Federal Circuit in patent cases. Highlights include two new petitions raising questions related to waiver of the prevailing arguments made in Arthrex, Inc. v. Smith & Nephew, Inc., non-obviousness, and argument-type prosecution history estoppel, two letters filed by the government in response to arguments related to Arthrex, Inc. v. Smith & Nephew, Inc., two amicus briefs in Arthrex, Inc. v. Smith & Nephew, Inc. itself, and the denial of four petitions. We have the details.
This week (and on Monday and Tuesday next week) the Federal Circuit will hold 17 panel hearings and hear oral arguments in about 53 cases. Amicus briefs were filed in three of these cases. The first is a patent case drawing attention because of a challenge to the district court’s prevailing party determination, a prerequisite for attorney fee awards. The second is a sister case to three cases argued at the Supreme Court last month, Maine, Moda, and Land of Lincoln. And the third case, which presents a challenge to the delegation of power to the President to impose tariffs on steel products, saw two amicus briefs supporting the challenger and two supporting the government.
Next week is argument week, and three cases slated to be argued attracted amicus briefs. The first is Dragon Intellectual Property v. Dish Network LLC, a patent case that drew interest from the Electronic Frontier Foundation on the issue of the district court’s prevailing party determination, a prerequisite for attorney fee awards. Here is our argument preview.
As a reminder, once a month we provide an update on activity in cases pending before panels of the Federal Circuit where the cases involve at least one amicus brief. Today with respect to these cases we highlight one opinion, briefing in six cases, a recent oral argument, and three upcoming oral arguments. (Note you can always find information related to these cases on our “Other Cases” page.) On to the update.
This morning the Federal Circuit issued three precedential opinions in a patent case, an international trade case, and a case affirming the Court of Federal Claims. The court also issued three nonprecedential opinions: two in patent cases and one in another case affirming the Court of Federal Claims. Finally, the court issued five Rule 36 judgments. Here are the introductions to the opinions and a list of the Rule 36 judgments.
Late on Friday the Federal Circuit issued two precedential orders in patent cases and one nonprecedential order in a patent case. These orders represent the immediate fall out from the Federal Circuit’s opinion late on Thursday in Arthrex, Inc. v. Smith & Nephew, Inc. that the Secretary of Commerce’s appointment of Administrative Patent Judges to the Patent Trial and Appeal Board violates the Appointments Clause of the U.S. Constitution. (You can find this blog’s report on that decision here.) On Friday, the Federal Circuit ruled in two cases that the appellants forfeited this same challenge by not raising it in their opening briefs, but instead only in a post-briefing motion or notice of supplemental authority. In the third case, the court canceled this week’s oral argument, vacated the PTAB’s decision, and remanded the case because the appellant did raise the Appointments Clause challenge in its opening brief. Here is the text of the orders.