The Federal Circuit decides appeals addressing patent law, government contracts, trade disputes, tax appeals, suits against the federal government, veterans’ benefits, and federal employment cases. Federal Circuitry takes a data-driven look at the Federal Circuit. Our <a href="/statistics" target="_self">Federal Circuit Statistics</a> empirically analyze appeal timing, outcomes, and other quantifiable aspects of the Court.  Our <a href="/trackers/en-banc-tracker" target="_self">En Banc Tracker</a> shows pending and past petitions where the Court has called for a response. Our <a href="/trackers/substantive-orders-tracker" target="_self">Substantive Order Tracker</a> allows you to search for less-discussed and hard-to-find orders that affect practice before the Court. Check back weekly for <a href="/topics/last-week-in-the-federal-circuit" target="_self">Last Week in the Federal Circuit</a> and monthly for our <a href="/topics/oral-argument-recap" target="_self">Oral Argument Recap</a>.<h2>About Morrison Foerster's Appellate + Supreme Court Practice</h2>Morrison Foerster’s market-leading <a href="https://www.mofo.com/capabilities/appellate-supreme-court.html">Appellate and Supreme Court practice</a> wins appeals with deep strategic thinking, clear writing, and forceful oral advocacy. Our work spans the Supreme Court of the United States, every federal court of appeals, and state appellate courts in California, New York, and elsewhere. And we handle appeals in every area of law—from intellectual property to class actions, arbitration to antitrust, environmental law to ERISA. We are consistently ranked as one of the top appellate and Supreme Court practices in the country by Chambers USA and Legal 500 USA, and our practice has been named to the National Law Journal’s Appellate Hot List multiple times.<h2>About Morrison Foerster's Patent Litigation Practice</h2>We are a global <a href="https://www.mofo.com/capabilities/patent-litigation.html">IP litigation</a> powerhouse, dedicated to fiercely protecting innovation in high-stakes and complex patent litigation matters. While we are skilled at resolving disputes short of trial, some cases do see the inside of a courtroom. When they do, our trial lawyers stand out for their superb knowledge of patent law, experience with judges in high-volume patent venues, facility with explaining cutting-edge technologies to juries, and history defending against patent assertion entities and other habitual plaintiffs. From cross-border matters and multiparty disputes to global litigation management and NPE litigations, we develop novel solutions to protecting and enforcing some of the most prized patents in the world.<h2>About Morrison Foerster</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Brian Matsui co-chairs Morrison Foerster’s Appellate and Supreme Court practice. Brian is a go-to appellate advocate for sophisticated clients in complex appeals. Brian has a nationwide appellate practice. He has argued many cases in federal and state appellate courts throughout the country, winning appeals involving federal preemption, securities litigation and enforcement, consumer class actions, and intellectual property. He has led appeals in the D.C., Second, Fourth, Fifth, Ninth, Eleventh, and Federal Circuits. His arguments include significant victories in class action appeals and in appeals for leading financial services companies, with multiple victories in the Ninth Circuit, where he clerked. Brian recently has gone five for six when representing appellants, including a precedential victory in the Ninth Circuit in a licensing dispute concerning alleged patent misuse. He also argued and won a D.C. Circuit appeal against the Securities and Exchange Commission (SEC) about the retroactivity of part of the Dodd-Frank Act. As a result of Brian’s win, the SEC had to change its enforcement practices against certain securities industry professionals.Clients frequently turn to Brian for his substantial experience with appeals in the Federal Circuit, praising him as “an invaluable advocate in patent matters” (Chambers USA). Brian has won 13 of his last 15 appeals in that Court. His arguments before the Federal Circuit include winning appeals from district courts, the Patent Trial and Appeal Board, and the International Trade Commission. He has handled appeals in a myriad of industries, including mobile devices, pharmaceuticals, medical devices, semiconductors, and software.Brian also plays a key role on trial teams, advising clients on both critical legal issues and appellate preservation. He recently argued and prevailed against a summary judgment invalidity motion in a case involving Chugai Pharmaceutical Co. Ltd.’s revolutionary antibody recycling technology, which ultimately led to a $775 million settlement on the eve of trial for Chugai.A former law clerk for the United States Supreme Court, Brian has authored many briefs in that Court, including on important constitutional and statutory interpretation issues. He often represents clients’ interests in amicus briefs in significant Supreme Court cases affecting the business community.Leading publications have recognized Brian for his appellate skills. The Legal 500 US recommends him for appellate litigation, and the National Law Journal named Brian a “Minority 40 Under 40.”Brian also dedicates significant time to pro bono matters. He argued and won two significant appeals—in the Second and Ninth Circuits—obtaining reversals of judgments that had denied private rights of action under the Child Welfare Act in precedential decisions. Brian also led the Morrison Foerster team who co-counseled a successful Eighth Amendment challenge to Florida’s imposition of a “life without the possibility of parole” sentence to a juvenile offender convicted of a non-homicide crime.For years, Brian chaired the ABA’s seven-person Standing Committee for Amicus Curiae Briefs. He served on the American Intellectual Property Law Association’s amicus committee and co-chaired the National Asian Pacific American Bar Association’s amicus committee. Brian served as an appellate lawyer representative for the Ninth Circuit. Brian also serves on the board of directors for the Lawyers’ Committee for Civil Rights Under Law.Before entering private practice, Brian clerked on the United States Supreme Court for Justice Anthony M. Kennedy. He also clerked for Judge Pamela Ann Rymer in the Ninth Circuit and Judge David F. Levi in the Eastern District of California.While in law school, Brian served as managing editor of Volume 51 of the Stanford Law Review and was elected to the Order of the Coif.<h4>Representative Oral Arguments</h4><ul><li><a href="https://oralarguments.cafc.uscourts.gov/default.aspx?fl=22-1260_02102023.mp3" target="_blank">SNIPR Technologies Ltd. v. Rockefeller University </a>(Fed. Cir.) Prevailed in a precedential decision reversing the Patent Office’s interpretation of the America Invents Act (AIA) that subjected patents post-dating the Act to pre-AIA interference proceedings. The decision revived five of SNIPR’s patents related to CRISPR technology.</li><li><a href="/resources/video-audio/220114-broadcom-corporation-v-renesas-matsui" target="_blank">Renesas Electronics Corporation v. Broadcom Corporation</a> (12:40) (Fed. Cir.) Successfully argued and briefed multiple appeals from an International Trade Commission (ITC) decision and several Patent Trial and Appeal Board decisions related to an ITC investigation initiated by Broadcom involving systems-on-chip powering automobile infotainment systems.</li><li><a href="/resources/video-audio/210706-cr-bard-v-medline-industries" target="_self">C.R. Bard Inc. v. Medline Industries, Inc.</a> (0:45) (Fed. Cir.) Won vacatur of three Patent Trial and Appeal Board decisions on obviousness.</li><li><a href="https://oralarguments.cafc.uscourts.gov/default.aspx?fl=21-1745_03102022.mp3" target="_blank">Advanced Voice Recognition Systems, Inc. v. Apple Inc.</a> (14:30) (Fed. Cir.) Secured a complete victory in appeal from Patent Trial and Appeal Board that all challenged patent claims were unpatentable.</li><li><a href="/resources/video-audio/200515-william-paulus-v-ocera-therapeutics-inc.html" target="_self">William Paulus v. Ocera Therapeutics, Inc.</a> (13:25) (9th Cir.) Successfully argued and briefed appeal in a putative shareholder class action involving a tender offer.</li><li><a href="/resources/video-audio/200410-kurtz-v-costco.html" target="_blank">Kurtz v. Costco Wholesale Corporation </a>(9:23) (2d Cir.) Successfully petitioned for review of a class certification decision, then argued and obtained a remand for the district court to reconsider its certification decision and an eventual reversal on an injunctive class certification decision.</li><li><a href="/resources/video-audio/161117-gregory-bartko-v-sec.html" target="_self">Gregory Bartko v. SEC</a> (0:53) (D.C. Cir.) Successfully argued and obtained precedential ruling that the Securities and Exchange Commission could not retroactively apply Dodd-Frank’s industry-wide sanctions on securities professionals for certain securities violations.</li></ul>

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Partner

Brian Matsui is a partner in Morrison Foerster’s Appellate and Supreme Court practice. For nearly 20 years, Brian has been a go-to appellate advocate for sophisticated clients in complex appeals nationwide. Clients turn to Brian for his substantial experience in patent appeals in the Federal Circuit. He has argued more than 10 times in that Court, winning appeals from both district courts and the Patent Trial and Appeal Board. Brian excels at applying significant legal principles to complex technologies in a way that distills them for the Court. He has done so for companies in a myriad of industries, including mobile device manufacturers, pharmaceutical companies, medical device companies, memory manufacturers, movie studios, and software companies.

Brian Matsui

Seth Lloyd, a member of Morrison Foerster’s Appellate and Supreme Court practice, has been counsel in more than a hundred appeals in federal and state courts nationwide. Seth has presented oral arguments in the U.S. Courts of Appeals for the D.C. Circuit, the Seventh Circuit, the Ninth Circuit, and the Federal Circuit, as well as in the New Jersey Appellate Division.Seth has particular experience in patent appeals before the Federal Circuit. He has authored successful briefs for both patentees and defendants on a wide range of technologies, from medical devices to pharmaceuticals to computer hardware and software. His practice includes appeals from district courts, the Patent Trial and Appeal Board, and the International Trade Commission. Seth also has argued nine times in the Federal Circuit. His winning arguments include a successful reversal of three PTAB decisions in a consolidated appeal for a computer memory designer. Seth is co-chair of the Federal Circuit Bar Association’s Administrative Law & Regulatory Committee. And he is an Editor of Morrison Foerster’s <a href="https://federalcircuitry.mofo.com/" target="_blank">Federal Circuitry</a> blog, which takes a data-driven approach to analyzing the Federal Circuit and its decisions.Seth regularly practices in the United States Supreme Court. He has drafted petitions and amicus briefs at the certiorari stage, as well as party and amicus briefs at the merits stage. Seth also moots members of the bar for Supreme Court arguments through the Georgetown Supreme Court Institute and is a member of the Edward Coke Appellate Inn of Court.Seth’s clients and peers recognize his expertise. Legal 500 named Seth a Key Lawyer; Super Lawyers called him a Rising Star; and Best Lawyers in America added him to its Ones to Watch list, all for appellate practice. Before joining Morrison Foerster, Seth served as a law clerk for Judge Richard G. Taranto of the Federal Circuit. He earned his J.D. from Stanford Law School, where he worked on two successful certiorari petitions and one successful merits case through Stanford’s Supreme Court Litigation Clinic.Seth also holds a Ph.D. and M.S. in electrical engineering from Stanford University. During his graduate studies, he received the National Defense Science and Engineering Graduate Fellowship, published 10 peer-reviewed articles, and co-invented the subject matter of five U.S. patents.<h4>Appellate Arguments</h4><ul><li><a href="/resources/video-audio/220114-renesas-electronics-v-broadcom-corporation" target="_self">Renesas Electronics Corp. v. Broadcom Corp.</a> (00:10) (Fed. Cir.) Argued and won affirmance for inter partes review petitioner in challenge to electronic device claims</li><li><a href="/resources/video-audio/170609-netlist-inc-v-diablo-technologies" target="_self">Netlist, Inc. v. Diablo Technologies, Inc.</a> (02:56) (Fed. Cir.) Argued and won reversal for owner of computer memory patents in appeals from three consolidated inter partes reviews</li><li><a href="/resources/video-audio/200610-google-llc-v-netlist-inc" target="_self">Google LLC v. Netlist, Inc.</a> (13:15) (Fed. Cir.) Argued and won affirmance for owner of computer memory patents in consolidated appeals from decade-long reexamination</li><li><a href="/resources/video-audio/220309-apple-inc-v-mph-technologies" target="_self">Apple Inc. v. MPH Technologies Oy</a> (00:16) (Fed. Cir.) Argued for inter partes review petitioner in challenge to computer security claims</li><li><a href="/resources/video-audio/180808-netlist-inc-v-sandisk-llc" target="_self">Netlist, Inc. v. SanDisk LLC</a> (01:53) (Fed. Cir.) Argued for patent owner in consolidated appeals raising APA challenges to inter partes review decisions</li><li><a href="/resources/video-audio/201026-nicole-k-v-stigdon" target="_self">Nicole K. v. Stigdon</a> (00:16) (7th Cir.) Argued for children in Indiana foster care raising constitutional due process claims</li><li><a href="/resources/video-audio/200306-strike-3-holdings" target="_self">Strike 3 Holdings, LLC v. Doe</a> (21:40) (D.C. Cir.) Argued as court-appointed amicus defending an order refusing a subpoena to unmask an internet subscriber’s identity</li><li><a href="/resources/video-audio/161118-harris-v-mangum" target="_self">Harris v. Mangum</a> (00:02) (9th Cir.) Argued as court-appointed amicus defending indigent prisoner’s right to a guardian ad litem</li></ul><h4>Additional Representative Matters</h4><ul><li>SNIPR Technologies Ltd. v. Rockefeller University (Fed. Cir.) Revived five SNIPR patents related to CRISPR technology after prevailing in a precedential decision that reversed the Patent Office’s interpretation of the America Invents Act (AIA), under which post-AIA patents could be subjected to pre-AIA interference proceedings</li><li>Broadcom Corp. v. International Trade Commission (Fed. Cir.) Successfully defended ITC’s determination of no Section 337 violation in case involving multiple patents directed to system-on-chip technology for automobile infotainment systems</li><li>Chugai Pharmaceutical Co. v. Alexion Pharmaceuticals (D. Del.) Successfully beat back defendant’s push for summary judgment of invalidity for lack of written description on pharmaceutical genus claims, ultimately helping to secure a $775 million settlement for the patent owner</li><li>C.R. Bard Inc. v. AngioDynamics, Inc. (Fed. Cir.) Secured reversal of district court judgment of non-infringement, no willfulness, and invalidity, reviving Bard’s infringement case on three patents</li><li>Washington University v. Wisconsin Alumni Research Foundation (3d Cir.) Successfully defended trial victory for breach of patent licensing agreement and further won judgment entitling Washington University to prejudgment interest</li><li>Nevro Corp. v. Boston Scientific Corp. (Fed. Cir.) Secured reversal for Nevro of district court judgment of invalidity for indefiniteness</li><li>Federal National Mortgage Association v. Zabriskie (9th Cir.) Won reversal for Fannie Mae of a Fair Credit Reporting Act judgment</li><li>Henson v. Santander Consumer USA Inc. (S. Ct.) Represented U.S. Chamber of Commerce and others as amici supporting respondent in unanimous affirmance of Fair Debt Collection Act decision</li><li>BASF Corp. v. Johnson Matthey Inc. (Fed. Cir.) Won reversal of an invalidity ruling against patentee BASF, reviving its patent claims</li><li>C.R. Bard Inc. v. Medline Industries, Inc. (Fed. Cir.) Won vacatur for petitioner of three Patent Trial and Appeal Board decisions on obviousness for patents to medical device technology</li><li>Altayyar v. Etsy, Inc. (2d Cir.) Secured dismissal of securities fraud case for failure to adequately plead falsity</li><li>Bridge & Post, Inc. v. Verizon Communications, Inc. (Fed. Cir.) Secured dismissal because asserted patents claimed unpatentable subject matter</li><li>Sam Francis Foundation v. Christie’s, Inc. (S. Ct.) Successfully preserved Sotheby’s en banc win at the Ninth Circuit based on the dormant Commerce Clause</li><li>Phigenix, Inc. v. Genentech, Inc. (Fed. Cir.) Secured total victory of noninfringement for Genentech</li><li>Deason v. Fujifilm Holdings Corp. (New York Appellate Division, First Department) Secured reversal in major shareholder challenge to corporate acquisition</li><li>V.L. v. E.L. (S. Ct.) As counsel for children’s guardian ad litem, secured reversal of Alabama Supreme Court’s refusal to grant full faith and credit to Georgia judgment recognizing lesbian mother as legal parent</li></ul>

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Seth Lloyd is an associate in Morrison Foerster’s Appellate and Supreme Court Practice with broad experience briefing and arguing appeals. Seth has particular experience in patent appeals before the Federal Circuit. He has been a primary author of successful briefs on a wide range of technologies, from medical devices to chemistry to computer hardware and software. He also has successfully argued multiple times in that Court, including obtaining reversal of three Patent Trial and Appeal Board decisions in a consolidated appeal for a computer memory designer. Before joining Morrison Foerster, Seth served as a law clerk for Judge Richard G. Taranto of the Federal Circuit. He earned his J.D. from Stanford Law School and also holds a Ph.D. in electrical engineering from Stanford University.

Seth Lloyd is an associate in Morrison Foerster’s Appellate and Supreme Court Practice with broad experience briefing and arguing appeals. Seth has particular experience in patent appeals before the Federal Circuit. He has been a primary author of successful briefs on a wide range of technologies, from medical devices to chemistry to computer hardware and software. He also has successfully argued multiple times in that Court, including obtaining reversal of three Patent Trial and Appeal Board decisions in a consolidated appeal for a computer memory designer. Before joining Morrison & Foerster, Seth served as a law clerk for Judge Richard G. Taranto of the Federal Circuit. He earned his J.D. from Stanford Law School and also holds a Ph.D. in electrical engineering from Stanford University.

Seth Lloyd

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Federal Circuitry is a data-driven Federal Circuit blog. Our <a href="https://federalcircuitry.mofo.com/statistics">Federal Circuit Statistics</a> empirically analyze quantifiable aspects of the Court. Our <a href="https://federalcircuitry.mofo.com/trackers/en-banc-tracker">En Banc Tracker</a> highlights pending and past petitions. Our <a href="https://federalcircuitry.mofo.com/trackers/substantive-orders-tracker">Substantive Order Tracker</a> allows you to search less-discussed orders. Check back weekly for <a href="https://federalcircuitry.mofo.com/topics/last-week-in-the-federal-circuit" target="_self">Last Week in the Federal Circuit</a> and monthly for our <a href="https://federalcircuitry.mofo.com/topics/oral-argument-recap" target="_self">Oral Argument Recap</a>. Follow us on Twitter <a href="https://twitter.com/Fed_Circuitry" target="_blank">@Fed_Circuitry</a>.

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Many petitions for rehearing are filed; only the smallest handful are granted. Rather than track every filed petition, we track those that have a chance. Our database tracks petitions for rehearing once the Federal Circuit has called for a response (CFR). A CFR is the first real indication that the Court might have interest in the petition, as it indicates that at least one judge on the Court may be taking a second look. Our En Banc Tracker allows you to see the amount of time it takes for various cases to get a CFR, and you can sift through the data to see what types of cases have captured the potential attention of the Court. Our data goes back to January 2020.<div data-reactroot=""><iframe allowfullscreen="" frameBorder="0" height="2350" width="100%" src="https://public.tableau.com/views/RehearingCFRsandSubstantiveOrders/RehearingCFRs?:language=en&amp;:display_count=y&amp;:origin=viz_share_link&amp;:showVizHome=no&amp;:embed=yes&amp;:showShareOptions=false"></iframe><style media="(min-width:48.0625em)">#embed-wrapper-338496522{padding: 0 0 2350px;}</style></div>

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Many orders from the Federal Circuit are not reported but can affect practice and procedure before the Court. We track and reproduce those orders here, highlighting ones that may be of significant interest to those who have cases before the Federal Circuit.<div data-reactroot=""><iframe src="https://public.tableau.com/views/RehearingCFRsandSubstantiveOrders/SubstantiveOrders?:language=en&amp;:display_count=y&amp;:origin=viz_share_link&amp;:showVizHome=no&amp;:embed=yes&amp;:showShareOptions=false" width="100%" height="3030" allowfullscreen="" frameBorder="0"></iframe></div>

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What Makes a Case Exceptional?

Fifth Circuit Weighs In on Transfer Factors In High-Tech IP Case

Recently in the Federal Circuit: More on Indefiniteness in IPRs

Recently in the Federal Circuit: Reasonable Expectation of Success May Not Be So Spooky After All

Recently in the Federal Circuit: Broadening Claims in IPRs

As many readers know, the Supreme Court just granted a petition for certiorari in <a target="_blank" href="https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/20-440.html">Minerva Surgical, Inc. v. Hologic, Inc.</a> The case asks the Supreme Court to abolish the doctrine of assignor estoppel. But the Supreme Court also passed on <a target="_blank" href="https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/20-631.html">a cross-petition</a> in the case. So we thought it worth spending a minute discussing what it all means.Assignor estoppel is a longstanding equitable rule that prevents inventors (or their privies) from assigning a patent to someone else and later challenging the patent’s validity in court. In Minerva, for example, a medical device inventor sold the company he created for commercializing his invention, along with rights to multiple patents, and started a competitor company. The buyer sued the inventor’s new company on two assigned patents, and the district court and Federal Circuit held that assignor estoppel applied and prevented the inventor’s new company from asserting invalidity defenses. The Supreme Court granted certiorari to decide whether the assignor estoppel rule should remain the law, particularly given a 1969 Supreme Court decision called Lear, Inc. v. Adkins that abolished the similar licensee estoppel rule. The question presented in Minerva is thus:Whether a defendant in a patent infringement action who assigned the patent, or is in privity with an assignor of the patent, may have a defense of invalidity heard on the merits.But Minerva involved another assignor estoppel issue. In parallel with the district court proceeding, the inventor’s new company filed petitions for inter partes review seeking to challenge the asserted patents at the Patent Office. The Patent Office granted review on only one of the district-court-asserted patents and held the challenged claims unpatentable, and the Federal Circuit affirmed. That Patent Office challenge was permitted because the Federal Circuit has held assignor estoppel inapplicable in inter partes review proceedings. And based on the Patent Office’s order to cancel claims in the IPR, the district court held that the inventor’s new company could not be liable for infringement of those claims in the district court action. That was so even though assignor estoppel prevented the new company from directly challenging the claims’ validity in district court.The cross-petition in Minerva asked the Supreme Court also to consider that issue, “whether an assignor of a patent may circumvent the doctrine of assignor estoppel by challenging the validity of the assigned patent in administrative proceedings before the Patent Office, and then using the Patent Office’s finding of invalidity to collaterally estop the assignee from relying on the patent in infringement litigation in district court.” But the Supreme Court denied review on that issue.That denial means, regardless of the outcome in Minerva, that the availability of inter partes reviews for assignors is unlikely to change for the time being. Current Federal Circuit precedent allows such Patent Office challenges and, because of the cross-petition denial, that issue is not currently before the Supreme Court. If the Supreme Court upholds the assignor estoppel rule for district court proceedings in Minerva, assignors will thus still have an option for challenging claim validity.It may be tempting to read the cross-petition denial as also hinting at how the Justices will rule on the merits—i.e., that they denied the cross-petition because they intend to do away with assignor estoppel altogether, which would moot the cross-petitioner’s complaints about circumvention. But as always, there can be many reasons for a cert. denial unrelated to the merits of an issue. It’s possible the Supreme Court simply wants to consider assignor estoppel in district court versus at the Patent Office one at a time. Or the Court may have thought there was some vehicle problem with the cross-petition that didn’t affect the main petition. Because as usual the Court gave no reason for its denial, there’s no way to know what, if anything, the denial signals about the Justices' views of the merits.The Supreme Court should hear oral argument in Minerva this spring and issue a decision by the end of June.

Seth Lloyd, a member of Morrison Foerster’s Appellate and Supreme Court practice, has been counsel in more than a hundred appeals in federal and state courts nationwide.

Brian Matsui co-chairs Morrison Foerster’s Appellate and Supreme Court practice. Brian is a go-to appellate advocate for sophisticated clients in complex appeals nationwide. 

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Assignor Estoppel for the Win? A Quick Look at the Supreme Court’s Grant in Minerva and Denial of the Accompanying Cross-petition

High Court Orders Rethink Of $9.7M Award After TransUnion

06_30_federalcircuit_blog_sc

As many readers know, the Supreme Court just granted a petition for certiorari in Minerva Surgical, Inc. v. Hologic, Inc. The case asks the Supreme Court to abo

Assignor Estoppel for the Win? A Quick Look at the Supreme Court’s Grant in Minerva and Denial of the Accompanying Cross-petition

Federal Circuit Insights

Now that the new year has started, we’re seeing an uptick in precedential opinions.  This week we decided to turn back to patent appeals, taking a look at IPRs and Article III—always a fun topic.  Below we provide our usual weekly statistics and our case of the week—our highly subjective selection based on whatever case piqued our interest.Precedential opinions: 4Non-precedential opinions:  16Rule 36: 6Longest pending case from argument:<a href="http://www.cafc.uscourts.gov/opinions-orders/19-2404.opinion.1-8-2021_1714382.pdf" target="_blank">James-Cornelius v. HHS</a>, No. 20-1969 (127 days)Shortest pending case from argument (non-Rule 36):<a href="http://www.cafc.uscourts.gov/opinions-orders/19-2411.opinion.1-5-2021_1711937.pdf" target="_blank">SIMO Holdings Inc. v. Hong Kong uCloudlink Network</a>, No. 19-2411 (60 days)Case of the week: <a href="http://www.cafc.uscourts.gov/opinions-orders/19-2051.opinion.1-6-2021_1712970.pdf" target="_blank">ABS Global, Inc. v. Cytonome/ST, LLC, No. 19-2051</a>Panel: Chief Judge Prost and Judges Moore and Stoll, with Judge Stoll writing the opinion and Chief Judge Prost dissenting in partYou should read this case if: you want to read another decision on Article III standing and mootness in IPR appealsWhat happens to an IPR appeal when the patent owner loses on infringement in the district court and says it won’t appeal?  The Federal Circuit answered that question in ABS.  And for those who don’t want to read further, here’s the answer:  the appeal, at least in this case, became moot.  But there’s an interesting back-and-forth about vacatur at the end, so keep reading.IP litigators know this story well.  Patent owner sues accused infringer.  Accused infringer then challenges some of patent owner’s asserted patent claims in an IPR.  The PTAB invalidates some claims, but it also finds that accused infringer failed to prove other claims were not unpatentable.  So accused infringer decides to appeal.Of course, here’s where the story takes a turn and gets a little interesting.  While the IPR was humming along, the district court granted summary judgment that the patent owner failed to prove infringement on the claims at issue in the IPR.  And when the patent owner filed its response brief in the IPR appeal, it included an affidavit from its counsel stating that the patent owner “has elected not to pursue an appeal of the district court’s finding of non-infringement … and hereby disclaims such an appeal.”  Having made that declaration, the patent owner argued that the formerly accused infringer lacked Article III standing to appeal the IPR final decision.  In turn, the accused infringer argued that the issue wasn’t one of standing, but instead went to mootness.  As to mootness, the accused infringer contended that its IPR appeal wasn’t moot.So what did the Federal Circuit do?  It agreed with the accused infringer that this issue was one of mootness, not standing.  But that’s pretty much where the Court’s agreement with the accused infringer ended.  The Federal Circuit looked to the Supreme Court’s burden-shifting framework in Already v. Nike, 556 U.S. 85 (2013).  First, the Federal Circuit held that the party asserting mootness (here, the patent owner) due to voluntary cessation bears the formidable burden of showing that it will not assert the patent claims against the accused infringer.  The Court held that the patent owner met that burden, because its disavowal barred future infringement actions based on the same patent claims against the same or essentially the same accused infringer’s products.  Second, the Court held that the burden shifted to the other party (the accused infringer) to demonstrate any evidence of an injury sufficient to support an ongoing case or controversy.  The accused infringer failed to meet that burden.  If anything, its statements all indicated that it didn’t believe it would infringe the patent in the future and that it would have strong preclusion arguments if the patent owner reasserted the claims again.  (Although one would imagine that the accused infringer had little incentive to argue that its products in development were likely to infringe, given that it had won non-infringement in the district court action.) The Court also rejected the accused infringer’s argument that there was a patent law exception to mootness under Fort James v. Solo Cup, 412 F.3d 1340 (Fed. Cir. 2005).  The accused infringer argued that a patent owner who strategically waits until after the resolution of its claim for patent infringement to offer a covenant not to sue (and not to appeal) does not moot a challenge to the patent’s validity.  While the several-page discussion is interesting and definitely worth a read, for our purposes it’s probably enough to say that the Court rejected any patent-specific exception to mootness.Finally, the Court refused to vacate the challenged portions of the PTAB’s decision.  The Court faulted the accused infringer for not raising vacatur until oral argument.  On this last point, Chief Judge Prost dissented.  She noted that “[t]ime and time again the Supreme Court has explained that vacatur is in order when the prevailing party below unilaterally moots an appeal.”  Citing the Supreme Court’s Munsingwear line of cases, she explained it “is only fair” to vacate.  She noted that this “appeal was not mooted by mere happenstance but by the unilateral act of an adversary to cement its victories below.”  The mere dismissal deprives the accused infringer of appellate review through no fault of its own, while vacatur clears the path for future relitigation of the appealed determinations.  And Chief Judge Prost excused the delay in the accused infringer’s request for vacatur.  She noted that the majority’s forfeiture ruling “ignores that [the patent owner’s] theory was a moving target throughout this appeal.  [The patent owner’s] response brief argued that [the accused infringer] lacked ‘standing,’ which does not trigger the Munsingwear analysis.”  And while the majority faulted the accused infringer for not requesting vacatur in its reply, the patent owner “had not yet even argued the case was moot.”

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Last Week in the Federal Circuit (January 4-8): Mooting your opponent’s appeal

Last Week in the Federal Circuit (January 4-8): Mooting your opponent’s appeal

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Now that the new year has started, we’re seeing an uptick in precedential opinions.  This week we decided to turn back to patent appeals, taking a look at IPRs 

Last Week in the Federal Circuit

We decided to start the new year off with a little practice pointer. We noticed that the Court rejected a brief today (not ours) for failing to comply with several rules. One basis for the rejection is a rule that often is overlooked—the location of the Standard of Review. Many experienced advocates place the Standard of Review in a section before—rather than as part of—the Argument. The rejected brief did that today too. But among the reasons why the brief was rejected was this:The brief does not contain the standard of review, or the standard of review must appear within the argument of the brief, either in the discussion of each issue or under separate heading before discussion of the issues. Fed. R. App. P. 28(a)(8); Fed. R. App. P. 28.1(c)(1)-(2).As you can see, the Court references FRAP 28(a)(8), which reads (the reference to FRAP 28.1 just refers back to 28(a)):Briefs(a) Appellant’s BriefThe appellant’s brief must contain, under appropriate headings and in the order indicated:…(8) the argument, which must contain:(A) appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on which the appeallant relies;(B) for each issue, a concise statement of the applicable standard of review (which may appear in the discussion of the issue or under a separate heaing placed before the discussion of the issues);Based on the citation to FRAP 28(a)(8), the Court seems to have concluded that it was not enough that the brief included the Standard of Review. The brief also had to include the Standard of Review within the Argument section—either under a separate heading or in the discussion of the issues. We haven’t seen this rejection before even though the Rule has been around for some time. Given the recent rejection, practitioners may want to review their templates and make sure their Standard of Review is located in the right place.

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Starting 2021 With a Tip

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We decided to start the new year off with a little practice pointer. We noticed that the Court rejected a brief today (not ours) for failing to comply with seve

Starting 2021 With a Tip

Last week, we got what may be the last big batch of Federal Circuit opinions of 2020.  (In 2019, only six more opinions issued between this time and the end of the year.)  Although most of last week’s decisions were issued pretty speedily after argument, one case had been on the Court’s plate for a while.  After pending for over a year since argument, Biogen v. Iancu, an IPR appeal, ended anticlimactically in a Rule 36 affirmance.  (For more on opinion timing, see <a href="https://federalcircuitry.mofo.com/topics/We-Updated-Our-Stats-and-Looked-at-the-Timing-of-Appeals.html">our stats post last week</a>.)  As we haven’t discussed a patent case since November, we decided to remedy that deficiency—even if that means writing about a non‑precedential decision.  Below we provide our usual weekly statistics and our case of the week—our highly subjective selection based on whatever case piqued our interest.Precedential opinions: 2Non-precedential opinions:  12Rule 36:  5Longest pending case from argument:Biogen, Inc. v. Iancu, No. 19-1364 (376 days)Shortest pending case from argument (non-Rule 36):<a href="http://www.cafc.uscourts.gov/opinions-orders/19-2306.opinion.12-18-2020_1704269.pdf" target="_blank">Caterpillar Inc. v. ITC</a>, No. 19-2306 (42 days)Case of the week: <a href="http://www.cafc.uscourts.gov/opinions-orders/20-1387.opinion.12-17-2020_1703604.pdf" target="_blank">Bracco Diagnostics Inc. vs. Maia Pharmaceuticals, Inc.</a>, No. 20-1387Panel: Judges Lourie, Clevenger, and Chen, with Judge Lourie writing the opinionYou should read this case if: grammar gets you goingDoes “X/Y” mean “X and Y,” “X or Y,” or both?  The Federal Circuit took on the meaning of a slash in our case of the week.The case concerns drug patent claims referring to “a surfactant/solubilizer.”  Whether the defendant infringed the patent turns in part on the meaning of the slash.  According to the accused infringer, the slash means “and”:  To be “a surfactant/solubilizer,” a substance must be both a surfactant and a solubilizer.  According to the patentee, the slash captures both “and” and “or”:  To be “a surfactant/solubilizer,” a substance can be a surfactant or a solubilizer, or both.  (Nobody argued for the third possibility that the slash means only “or”:  The substance must be either a surfactant or a solubilizer but not both.)  Because this is an issue of claim construction and the parties didn’t resort to extrinsic evidence, the case called for an answer to the meaning of the slash as a matter of law.The district court sided with the patentee.  With no apparent sense of irony, the court construed the term to mean a “surfactant and/or a solubilizer.”  The district court then showed off even more uses of this beguiling punctuation mark, explaining that a surfactant can change the properties of a substance “at air/liquid or liquid/solid interfaces.”The Federal Circuit agreed that the slash in “surfactant/solubilizer” captures both “and” and “or.”  (The Court actually called it a “backslash,” which ordinarily <a href="https://www.dictionary.com/browse/backslash">refers to</a> a different punctuation mark, “\”.  Maybe we should be saying “slash/backslash” in this post, but we’re sensitive to our readers’ pain tolerance.)Had the Court looked outside of the patent, it could have surveyed the varied uses of slashes in common parlance.  We often understand slashes to mean “and”—as in “JD/MBA” and “I’m working remotely from my bedroom/office.”  Slashes can also mean “or”—as in “he/she.”  And they can mean, as the Court held here, both “and” and “or”—as in “Please bring food/drinks.”  (There are still <a href="https://www.thepunctuationguide.com/slash.html">more possibilities</a>.)  Is one of these the slash’s plain ordinary meaning?The Court didn’t go there, instead focusing only on contextual clues in this patent bearing on the slash’s meaning.  Other claims in the patent, the Court concluded, indicated that “surfactant/solubilizer” can include a substance that is only a “surfactant.”  Also, the specification used slashes with other words, and the Court found those uses consistent with the slash capturing “or.”This opinion won’t put an end to debates over slashes.  Not only was the opinion’s analysis tailored to this patent, but the Court also made the opinion non-precedential.  We hope that when the Federal Circuit takes on the next greatest linguistic debate of the modern era, it will issue its view on whether <a href="https://www.foodandwine.com/news/ruth-bader-ginsburg-hot-dog-sandwich">a hot dog is a sandwich</a> in a binding opinion.

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Last Week in the Federal Circuit (December 14-18): And/or confusion

Last Week in the Federal Circuit (December 14-18): And/or confusion

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Last week, we got what may be the last big batch of Federal Circuit opinions of 2020.  (In 2019, only six more opinions issued between this time and the end of 

We updated our <a href="https://federalcircuitry.mofo.com/statistics">stats</a>, so we now have over a year of data since we started collecting data from every Federal Circuit decision.  As such, we thought we might take a look at some of the timing data on Federal Circuit appeals.  As readers know, we’ve taken a look at win-lose statistics a few times (<a href="https://federalcircuitry.mofo.com/topics/201021-who-wins-who-loses-revisited.html">here</a> and <a href="https://federalcircuitry.mofo.com/topics/200714-who-wins-who-loses.html">here</a>).So one interesting question is whether patent cases take longer to decide than non-patent cases.  I decided to focus on the median number of days rather than the average, to avoid outlier decisions from skewing the numbers.  From argument to decision, the Court takes about a month (38 days) for non-prec opinions and three months (88 days) for precedential ones.  Interestingly, if we look at just patent cases, then the time increases slightly for non-prec opinions (42 days) and decreases slightly for precedential ones (79 days).  For non-prec, the PTAB to district court breakdown is 38 days to 50 days respectively.  That’s not surprising:  given that PTAB cases generally have more narrow issues, it makes sense that non-prec PTAB decisions would be a bit quicker.  On the other hand, precedential PTAB cases took longer than district court ones (92 days compared 79 days).<div data-reactroot=""><img src="https://media2.mofo.com/v3/images/blt5775cc69c999c255/blt82326a9562e09668/627316a28e09542a15b7deb7/chart11.png?format=auto&amp;quality=60" alt="Chart"/></div>I was also interested if some cases get scheduled quicker for argument than others.  One perception some people have is that the Court tries to balance the calendars—otherwise during the height of IPR appeals the monthly sittings would be nothing but PTAB cases.  Overall, it takes an average of 154 days and a median of 148 days from the filing of the appendix to oral argument for all cases.  Interestingly, the numbers are about the same for patent cases:  159 days average and 149 days median.  As for the perception that PTAB cases might take longer because there are so many of them?  Not really true.  The average is 161 days and the median is 150 days.  District court patent cases are about the same:  158 days average and 149 days median.  This means that the Court has a pretty balanced docket and does a really good job of getting all cases to argument at around the same pace.  Is anything quicker?  Yes, veterans cases that get argued (remember, many are pro se and don’t get argument) tend to be a bit faster—129 day average and 131 day median.<div data-reactroot=""><img src="https://media2.mofo.com/v3/images/blt5775cc69c999c255/blt4be32556c6d04b7c/627316a3deee7329767e7670/chart21.png?format=auto&amp;quality=60" alt="Chart"/></div>One final timing stat I decided to look at was days from notice of appeal to decision—as this likely also reflects things like extensions and other extended briefing.  I wondered if parties in district court patent cases might take longer.  Here, PTAB cases came in at 460 days average and 427 days median.  District court patent cases came in at 427 days average and 404 days median.  This tells us that there’s nothing to see here.  Both PTAB cases and district court patent cases are taking about the same amount of time—start to finish—and any delay in the PTAB cases is likely due to the 40 days that the Patent Office has to file the certified record before briefing starts.

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We Updated Our Stats and Looked at the Timing of Appeals

We Updated Our Stats and Looked at the Timing of Appeals

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We updated our stats, so we now have over a year of data since we started collecting data from every Federal Circuit decision.  As such, we thought we might tak

This week we talk about the most important standing decision decided by any court last week.  Ok, perhaps, it was the second most important standing decision.  Last week’s case addresses who may sue, and when they must sue by.  It was decided by an initial en banc Court.  And it led to an “Emergency Amendment” to the Federal Circuit Rules.  What’s not to love about that?  So below we provide our usual weekly statistics and our case of the week—our highly subjective selection based on whatever case piqued our interest.Precedential opinions: 3Non-precedential opinions: 11Rule 36:  7Longest pending case from argument:  Tie between <a href="http://www.cafc.uscourts.gov/opinions-orders/19-1882.opinion.12-7-2020_1697072.pdf" target="_blank">Harrington v. DVA</a>, No. 19-1882 and <a href="http://www.cafc.uscourts.gov/opinions-orders/19-2359.opinion.12-7-2020_1697100.pdf" target="_blank">SiOnyx LLC v. Hamamatsu Photonics K.K.</a>, No. 19-2359 (62 days)Shortest pending case from argument (non-Rule 36):<a href="http://www.cafc.uscourts.gov/opinions-orders/20-1321.opinion.12-8-2020_1698083.pdf" target="_blank">NOVA v. Secretary of Veterans Affairs</a>, No. 20-1321 (61 days)Case of the week: <a href="http://www.cafc.uscourts.gov/opinions-orders/20-1321.opinion.12-8-2020_1698083.pdf" target="_blank">NOVA v. Secretary of Veterans Affairs</a>, No. 20-1321Panel: En banc, with Judge Dyk writing the opinionYou should read this case if: you’re challenging an agency determination and your standing has been questioned.What better way to start the week than to talk about an initial en banc opinion, standing, and the Federal Circuit overruling one of its own local rules—all for the benefit of those who have served our country.  We love it.  It’s like Christmas, Chanukah, Kwanzaa, and Festivus all wrapped up in one!So what’s the big deal here?  Well, long story short: the VA promulgated two interpretative rules related to knee joints and knee replacements.  We’re not going to get into the nitty gritty details of those rules, but they ended up being challenged in a petition for review by the National Organization of Veterans’ Advocates, Inc. (“NOVA”) and some individuals.  NOVA faced hurdles.  Prior Federal Circuit precedent said there was no jurisdiction to review these types of rules.  Federal Circuit Rule 15(f) said that anyone who wants to challenge this kind of rule pre-enforcement needs to do so within 60 days of its issuance—not several years later.  And if that wasn’t enough, the Court sua sponte questioned whether NOVA had standing.Usually a petitioner facing that many threshold challenges—not the least of which was to get initial en banc review—is doomed.  But NOVA cleared them all.  We’ll focus on the issues of most interest to us:  standing and the Court’s own rules.  That’s not to diminish the other relief the petitioners obtained.  We recommend you read the whole decision.Standing.The Court sua sponte ordered the parties to address whether NOVA had standing, whether its members had standing, and whether NOVA had standing independent of its members.  Two things stand out.  The Court rightly needs to ensure it has Article III jurisdiction, and it has become particularly vigilant in the agency review context.  For example, the Court’s decision repeatedly cited Phigenix v. Immunogen—an IPR appeal in which a patent-challenger appellant’s standing was successfully challenged by a patent-owner appellee on appeal.  At one point, the Court even referred to the “Phigenix standard.”  And it explained that Phigenix created a summary judgment standard for standing—that is, the party asserting standing must meet a burden of production with affidavits or other evidence of “specific facts,” which for standing purposes will be taken to be true.NOVA responded by arguing that it had Article III standing because its members had standing, even though it identified no particular member who had standing.  Overruling past precedent, the Court explained that Article III requires more specificity; the association must identify an affected member, the nature of the member’s injury or threatened injury, and the reason why the challenged rule adversely affected that member.  The Court held:  “the organization must show that the veteran member has an actual or potential claim and that this claim is sufficiently affected by the particular challenged rule to meet the requirements of actual or imminently threatened concrete harm and the other requirements for that member to have Article III standing.”NOVA met this requirement by submitting declarations from its members who suffered injuries traceable to the VA’s regulations.  The government complained that none of those members had a claim pending before the VA.  But the Court brushed that complaint aside.  It explained that “Supreme Court precedent makes clear that standing does not require a pending adjudicative proceeding in order to generate a cognizable Article III injury.”  And it noted that “[i]n the patent context, a pending infringement action is not required to establish standing to challenge patent validity.”We won’t dwell on the other two issues for organizational standing.  It suffices to say that the Court found both satisfied.  NOVA showed that the interests it sought to protect were germane to the organization’s purpose.  And it showed its challenge to the VA’s rules didn’t require “individualized proof”—NOVA was making a purely legal challenge to the rules under the APA.Timeliness.  The Court also addressed whether NOVA’s petition was timely.  NOVA challenged the VA’s rulemaking under 38 U.S.C. § 502, which has no specific statute of limitations.  The Court noted that 28 U.S.C. § 2401 provides that “every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues.”  While that should have given NOVA six years to challenge the rule, Federal Circuit Rule 15(f) significantly shortened the time for challenges like NOVA’s:  “A petition for judicial review of an action of the Secretary of the Department of Veterans Affairs under 38 U.S.C. § 502 must be filed with the clerk of court within sixty (60) days after issuance of the action challenged in the petition.”  To state the obvious:  six years versus sixty days is a pretty big difference.So can a court’s local rule set a shorter limitations period that the one set by Congress?  Nope.  The Court held that Congress’s six-year limitations period “alone governs the time” to bring the action.  The Court noted that it was “aware of no appellate decisions that have approved a local rule either expanding or limiting the time to file a claim where a statutory time limit applies.”  It explained that courts of appeals have “uniformly” rejected district court local rules setting time limits inconsistent with the Federal Rules of Civil Procedure.  And it noted that the Supreme Court has resisted judicial efforts to depart from statutory time limits.So what happens when the Court invalidates its own rule like this?  It issues an “Emergency Amendment” to those rules.  The Court did that <a href="https://cafc.uscourts.gov/wp-content/uploads/Announcements/PublicNotices/Notice-EmergencyRuleAmendment-12092020.pdf" target="_blank">here</a>, striking the 60-day limitations period and replacing it with the 6 years required by 28 U.S.C. § 2401(a).

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Last Week in the Federal Circuit (December 7-11): Standing and Invalidating the Court’s Own Local Rule

Last Week in the Federal Circuit (December 7-11): Standing and Invalidating the Court’s Own Local Rule

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This week we talk about the most important standing decision decided by any court last week.  Ok, perhaps, it was the second most important standing decision.  

Last week, Seth Lloyd and I noticed that there had been two more Rule 36s in appeals without oral argument from the Federal Circuit’s November sitting (<a href="https://federalcircuitry.mofo.com/topics/201204-november-oral-argument-recap.html">here</a>).  And then yesterday, Bloomberg’s Perry Cooper <a href="https://twitter.com/PerryECooper/status/1337051648741564418?s=20">tweeted</a> that two more Rule 36s were handed down from this month’s sitting in appeals without argument.  That got me thinking, how many times since the pandemic began has the Court Rule 36’d without argument?  And can anything be gleaned from those decisions?  Usually, one expects that if there’s no oral argument then the parties will get a short explanation as to why the Court ruled a certain way in a non-precedential decision.  But if there’s an argument, there’s perhaps less need for a written explanation:  the parties likely learned enough at oral argument from the judges’ questioning to understand the basis for the decision.  But here, in this subset of cases with no opinion or oral argument, some appellants may be left wondering “why did I lose?”So how many appellants did we find in that special category?  Nine.  Seven were in patent appeals—and those seven were pretty evenly divided between PTAB (three) and district courts (four).  One was a government contracts case.  And the last one was (at first glance) a little mysterious.Let’s take the two non-patent appeals first.  Neither case was a cancelled argument per se.  And the government contracts case likely has a straightforward reason for why the Court Rule 36’d without argument—the appellant contractor waived argument.  Given that the appellant didn’t see the need to argue, it seems entirely possible that the panel (Judges Bryson, Wallach, and Hughes) didn’t see a reason to provide written reasons for its disposition.  Maybe had the appellant not waived the oral argument, the Court would have held argument and Rule 36’d.  Or maybe it would have cancelled argument anyway and would have issued a non-precedential decision.  We’ll never know, but it seems possible—if not likely—that the appellant’s decision to waive argument played some role in the Court’s decision.As for the mystery case:  it was a pro se <a href="http://www.cafc.uscourts.gov/opinions-orders/20-1535.rule_36_judgment.9-14-2020_1651722.pdf" target="_blank">appeal</a>, so it made sense that there was no oral argument.  What made less sense was the affirmance by a Rule 36, as usually the Court issues a short non-prec opinion explaining the decision.  Wanting to know more, I looked at the docket.  What I found made the case both more and less mysterious.  The case was entirely under seal; I couldn’t see what documents (redacted or not) were filed and when.  Given the secrecy, it made more sense that the Court might Rule 36 rather than draft an entirely sealed decision.  (For those wondering, you can Google the parties and (perhaps) get some information about the case.)That leaves the seven patent cases.  All seven of these appeals had oral argument cancelled.  Not surprisingly, there wasn’t a clear pattern.  For the PTAB cases, two appeared to be substantial evidence challenges and one a claim construction challenge.  And they were split two-to-one between patent-challenger appellant and patent-owner appellant.  Interestingly, two of the district court cases were 101 appeals, where the patent owner had its claims determined ineligible on a motion to dismiss.  I suppose one could say it’s both surprising and unsurprising that the Court didn’t want to hear argument and write about another 101 appeal.  The last two were a mixed bag.  One was an attorney fees appeal, where a prevailing party wanted fees awarded.  And the last appeal had something to do with personal jurisdiction, but my five to ten minute read didn’t give me much insight into the issues, so I can’t say more.  Perhaps that’s why the panel decided both oral argument and a written decision were unnecessary.  Or perhaps I just should have had that second cup of coffee before looking at the briefs.Some final tidbits:<ul><li>Judge Lourie was on four Rule 36s in appeals without argument—all cancelled argument cases.  Judge Newman was next with three, and several other judges were on two such appeals.</li><li>Of the active judges, only Judge Chen has not been on a Rule 36 without argument since the pandemic began.</li><li>While the sample size is so small that it’s hard to suggest this is anything but anecdotal, it’s interesting that most of the Rule 36s without argument have occurred in the last three months—two each in October, November, and December.  By comparison, there were only three Rule 36s without argument in the first six months of telephonic arguments (April-September).  It may be that as the telephonic argument format has continued, judges have decided that some cases are so straightforward that argument wouldn’t assist the Court and the parties don’t need a written explanation.  If so, it seems likely that the Rule 36s without argument may continue.</li></ul>

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No Argument, No Opinion—a Quick Look at Unargued Rule 36 Decisions During the Pandemic

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Last week, Seth Lloyd and I noticed that there had been two more Rule 36s in appeals without oral argument from the Federal Circuit’s November sitting (here).  

No Argument, No Opinion—a Quick Look at Unargued Rule 36 Decisions During the Pandemic

Apparently it’s a <a href="https://www.nytimes.com/2015/11/26/science/no-the-tryptophan-in-turkey-wont-make-you-sleepy.html">myth</a> that Thanksgiving turkey makes you sleepy.  We beg to differ, judging from how much time it took us to shake off the food coma.  The Federal Circuit seemingly was in the same boat:  It had a slow post-Thanksgiving week, issuing only 5 decisions.  Below we provide our usual weekly statistics and our case of the week—our highly subjective selection based on whatever case piqued our interest.Precedential opinions: 3Non-precedential opinions: 2Rule 36: 0Longest case pending from argument: <a href="http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/19-2078.OPINION.12-1-2020_1693794.pdf">Albright v. United States</a>, No. 19-2078 (91 days)Shortest case pending from argument (non-rule 36): <a href="http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/19-2293.OPINION.12-4-2020_1696173.pdf">Esparraguera v. Army</a>, No. 19-2293 (56 days)Case of the week: <a href="http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/19-2293.OPINION.12-4-2020_1696173.pdf">Esparraguera v. Army</a>, No. 19-2293Panel: Chief Judge Prost and Judges Lourie and Moore, with Chief Judge Prost writing the opinionYou should read this case if: you have an appeal from an unusual type of agency order“This is a case about jurisdiction.”  That’s how our case of the week begins, and we were instantly hooked.  (Others might have the opposite reaction.)  Specifically, this is a case about appellate jurisdiction—even more specifically, whether the agency order appealed from was “final.”The case involves an uncommon type of agency proceeding:  an “informal hearing” before the Merit Systems Protection Board for a career appointee removed from the Senior Executive Service.  Let’s unpack that a bit.  The Senior Executive Service (SES) is a small, elite category of government employees—as the name suggests, these are the civil service’s senior executives.  For a career government employee, appointment to an SES position is a boon:  more pay and more power.  But like all good things, SES appointments can come to an end.  Career appointees can be removed from the SES and demoted to a non-SES position for “less than fully successful executive performance.”That’s what happened to the appellant in this case.  Maria Esparraguera was the top labor lawyer in the Army, an SES position.  The Army removed her from that position based on concerns about her leadership.  (She had taken unorthodox steps when filling a vacancy in her organization that advantaged one candidate over the others.)  The Army demoted her to a non-SES (but still senior) position.Esparraguera invoked 5 U.S.C. § 3592(a)(2), which entitled her to an “informal hearing” “at which the career appointee may appear and present arguments.”  The Merit Systems Protection Board heard her arguments and issued an order.  But that order did not say whether the removal was proper; it merely summarized the proceedings and referred the record to the Army for further consideration of the removal decision.  In response, the Army stuck to its guns.When Esparraguera appealed the Board’s order, the Federal Circuit held that it lacked appellate jurisdiction.  The Court has appellate jurisdiction over the Board only for “a final order or final decision.”  “Final,” the Court explained, has the same meaning in this context as it usually does in federal appellate procedure.  The question here was thus whether the Board’s order in Esparraguera’s hearing under § 3592(a)(2) was “final” under ordinary appellate principles.The Court held that it was not.  Esparraguera was challenging her removal, so the Court asked whether the Board’s order was final “with respect to Ms. Esparraguera’s removal.”  It was not, the Court explained, because the order “did not dispose of the ‘case’ of her removal.”  Recall that the Board’s order simply referred the record to the Army for its consideration without deciding whether the removal was proper.  Indeed, the Board could not have made that decision, as the Court held that performance-based SES removals are unreviewable by the Board.Esparraguera invoked the presumption in favor of judicial review, but the Court was unpersuaded.  It said that even if she was entitled to judicial review of the Board’s order in some court, the Federal Circuit was not the one.  But the Court also stopped short of deciding whether judicial review was in fact available elsewhere.  The presumption thus seems to have carried little weight in the Court’s eyes, but perhaps that’s just because the Court thought this order was so clearly unreviewable.

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Last Week in the Federal Circuit (November 30-December 4): Appellate Jurisdiction Over Agency Orders

Last Week in the Federal Circuit (November 30-December 4):  Appellate Jurisdiction Over Agency Orders

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The Federal Circuit eased back into business after Thanksgiving with an interesting case about appellate jurisdiction.

Thanksgiving has come and gone, and we’ve all hopefully had a chance to ponder what we’re thankful for (including that a wild 2020 is about to close). Next week marks the start of the Federal Circuit’s last oral argument session of 2020. Lucky for those Monday-morning advocates, the Court’s session starts on December 7 and not the Monday after Thanksgiving—as it did for those who argued in the Supreme Court this week (or those at the Federal Circuit last year). But don’t worry, 2021 will include the Federal Circuit’s “coveted” January 4 and July 6 oral argument days; something to look forward to!So before December arguments kick off, how did the November sitting turn out statistically? Well, there was an uptick in the percentage of arguments cancelled compared with September and October—the Court ended up cancelling scheduled arguments in 19 out of 55 cases, or 34.5%. As we reported previously (see <a href="https://federalcircuitry.mofo.com/topics/October-Oral-Argument-Recap.html" target="_blank">October Oral Argument Recap</a>), September and October saw cancelled argument percentages in the low 20s.  But although November went up, it’s still on the low side for the year, and much lower than the first few months of telephonic arguments when the Court was cancelling roughly half of scheduled arguments (see <a href="https://federalcircuitry.mofo.com/topics/200724-july-oral-argument-recap.html" target="_blank">July Oral Argument Recap</a>).At the same time as the percentage of cancelled arguments went up, the percentage of argued cases affirmed without an opinion under Rule 36 went down.  So far, the November sitting produced 13 affirmances via Rule 36, but only 11 of those were in argued cases, or just 30.6%. That’s much lower than in October and September (48% and 61%, respectively). That may suggest that judges are still figuring out what works best—holding argument and then issuing an affirmance without opinion, or cancelling argument and drafting a short affirmance. Or it may just be noise—the numbers here are all still pretty small.Those two cases where the Court affirmed without opinion and without argument were also noteworthy. Although we’ve seen one or two of those already this year, they’re still pretty rare. The ones last month came from two different panels—one from Panel J (Newman, Moore, and Hughes), and one from Panel D (Moore, Reyna, and Taranto). In fact, the Rule 36 affirmance from Panel D issued just four minutes (at 10:07 am) after the case was formally submitted on the briefs (at 10:03 am) on the morning of the originally scheduled argument. The Court definitely didn’t leave anyone waiting for its decision on that one!Looking forward to December, the Court cancelled argument in 16 out of 55 cases originally scheduled for oral argument (29%), which is pretty on par with November. The Court also looks to be continuing its trend of cancelling appeals from the PTAB at a higher rate than appeals from district court—so far, it has cancelled argument in 6 out of 15 PTAB appeals but only 4 out of 18 district court appeals. Check back next month for a full run-down of December.Finally, here are some additional statistics from the November sitting:Total cases: 36 arguments (and 19 counseled cases submitted on the briefs)Oldest case: In re: Advanced Media Networks, LLC, No. 19-1766 (docketed April 12, 2019; 573 days from docketing to argument).Quickest case: Baggage Airline Guest Services v. Roadie, Inc., No. 20-1540 (docketed Mar. 6, 2020; 241 days from docketing to argument)PTAB cases: 7 arguments (and 6 counseled cases submitted on the briefs)District court cases: 11 arguments (and 3 counseled cases submitted on the briefs)Rule 36 affirmances: 13 (11 in argued cases, 2 in counseled cases submitted on the briefs; 5 from district court, 4 from the PTAB, and 1 each from the MSPB, ITC, CAVC, and BCA)Number of argument days by judge:<ul><li>Prost: 3</li><li>Newman: 3</li><li>Mayer: 0</li><li>Plager: 0</li><li>Lourie: 4</li><li>Clevenger: 1</li><li>Schall: 2</li><li>Bryson 1</li><li>Linn: 0</li><li>Dyk: 4</li><li>Moore: 3</li><li>O’Malley: 4</li><li>Reyna: 4</li><li>Wallach: 3</li><li>Taranto: 4</li><li>Chen: 3</li><li>Hughes: 3</li><li>Stoll: 3</li></ul>

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November Oral Argument Recap

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Thanksgiving has come and gone, and we’ve all hopefully had a chance to ponder what we’re thankful for (including that a wild 2020 is about to close). Next week

November Oral Argument Recap

Oral Argument Recap

At Federal Circuitry blog, we like to check in once in a while on what the Federal Circuit is doing in its orders that don’t get posted on the public website. Those orders often offer nuggets about practice at the Federal Circuit and sometimes even give insight into more substantive issues. So below we flag a few orders that caught our eyes.In looking at orders in the last month or so, we noticed a range of orders in pending cases following the Supreme Court’s certiorari grant in Arthrex (see <a href="https://federalcircuitry.mofo.com/topics/Supreme-Court-to-Review-Arthrex.html" target="_blank">Supreme Court to Review Arthrex: Big Deal or Ho Hum?</a> and <a href="https://federalcircuitry.mofo.com/topics/What-Does-the-Supreme-Courts-Grant-on-Social-Security-Cases-Have-to-Do-With-iArthrexi.html" target="_blank">What does the Supreme Court’s Grant in Two Social Security Cases Have to Do with Arthrex?</a>). In some, the Federal Circuit declined to halt proceedings even though Arthrex’s fate remains uncertain in the Supreme Court. For example, the Federal Circuit <a target="_blank" href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/blt417e29c8fcf1d161/6273169b0d4d8e1d7f10f2a6/201021-finjan-stay-order.pdf">denied </a>an opposed stay request by an appellant from an inter partes review in appeal No. 19‑2151. The movant was a petitioner who argued for vacatur under the Federal Circuit’s decision in Arthrex but acknowledged that Federal Circuit precedent foreclosed that argument. Although the movant argued that the Supreme Court’s review had the potential to change that precedent, a per curiam order denied the motion.Along the same lines, in another per curiam <a target="_blank" href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/blt59b20610750c2e87/6273169c8e09542a15b7deb3/201027-new-arthrex-remand-order.pdf">order </a>in appeal No. 20-1444, the Federal Circuit granted a patent owner’s motion to vacate and remand to the PTAB under Arthrex. Although the petitioner and the government opposed that relief, the Federal Circuit granted it less than a week after the parties had been notified of oral argument scheduling. Consistent with the stay denial in appeal No. 19‑2151, the Court treated the Federal Circuit’s Arthrex decision as dispositive despite the pending Supreme Court review.In two other cases, however, the Federal Circuit stayed cases based on the cert. grant in Arthrex. Both those cases seem to differ from the above because they involve unsettled questions about the effect of Arthrex. Thus in appeal No. 20-1196, about a week before the scheduled oral argument, the Federal Circuit sua sponte <a href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/blta31cf23bac6f624f/6273169c4886af2aa2be10a6/201023-ttab-order.pdf" target="_blank">canceled </a>argument and ordered the case stayed pending the Supreme Court’s decision in Arthrex. The appeal was from the TTAB, not the PTAB, and the opening brief argued that Arthrex should apply to TTAB judges. And in appeal No. 19-2454, the Court <a href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/blt714360b789cdac25/627316a00d4d8e1d7f10f2aa/201023-mspb-arthrex-order.pdf" target="_blank">granted </a>the government’s unopposed stay request based on the Arthrex cert. grant and again canceled a scheduled oral argument. The appeal involved another unanswered question—whether the reasoning of Arthrex extends to the MSPB.Looking at these cases together, the Court appears to be continuing to apply its settled precedent on Arthrex when that precedent squarely applies to the facts of a given case. But it may be less likely to extend that settled precedent to new facts until it receives further guidance from the Supreme Court.<div><div><div id="_com_4" class="msocomtxt" language="JavaScript"></div></div></div><div id="_mcePaste" style="position: absolute;left: -10000px;top: 0px;width: 1px;height: 1px;overflow-x: hidden;overflow-y: hidden;">At Federal Circuitry blog, we like to check in once in a while on what the Federal Circuit is doing in its orders that don’t get posted on the public website. Those orders often offer nuggets about practice at the Federal Circuit and sometimes even give insight into more substantive issues. So below we flag a few orders that caught our eyes in the past couple weeks. In looking at orders in the last month or so, what caught our attention the most was a range of orders in pending cases following the Supreme Court’s certiorari grant in Arthrex (see <a href="https://federalcircuitry.mofo.com/topics/Supreme-Court-to-Review-Arthrex.html">Supreme Court to Review Arthrex: Big Deal or Ho Hum?</a> and <a href="https://federalcircuitry.mofo.com/topics/What-Does-the-Supreme-Courts-Grant-on-Social-Security-Cases-Have-to-Do-With-iArthrexi.html">What does the Supreme Court’s Grant in Two Social Security Cases Have to Do with Arthrex?</a>). In some cases, the Federal Circuit declined to halt proceedings even though Arthrex’s fate remains uncertain in the Supreme Court. For example, in one case, the Federal Circuit denied an opposed stay request by a petitioner/appellant from an inter partes review in appeal No. 19‑2151. The movant was a petitioner who argued for vacatur under the Federal Circuit’s decision in Arthrex but acknowledged that Federal Circuit precedent foreclosed that argument. Although the movant argued that the Supreme Court’s review had the potential to change that precedent, a per curiam order denied the motion. Along the same lines, in another per curiam order in appeal No. 20-1444, the Federal Circuit granted a patent owner’s motion to vacate and remand to the PTAB under Arthrex. Although the petitioner and the government opposed that relief, the Federal Circuit granted it less than a week after the parties had been notified of oral argument scheduling. Consistent with the stay denial in appeal No. 19‑2151, the Court treated the Federal Circuit’s Arthrex decision as dispositive despite the pending Supreme Court review. In two other cases, however, the Federal Circuit stayed cases based on the cert. grant in Arthrex. Both those cases seem to differ from the above because they involve unsettled questions about the effect of Arthrex. Thus in appeal No. 20-1196, about a week before the scheduled oral argument, the Federal Circuit sua sponte canceled argument and ordered the case stayed pending the Supreme Court’s decision in Arthrex. The appeal was from the TTAB, not the PTAB, and the opening brief argued that Arthrex should apply to TTAB judges. And in appeal No. 20-1444, the Court granted the government’s unopposed stay request based on the Arthrex cert. grant and again canceled a scheduled oral argument. The appeal involved another unanswered question—whether the reasoning of Arthrex extends to the MSPB. Looking at these cases together, it appears that the Court will continue to apply its settled precedent on Arthrex when that precedent squarely applies to the facts of a given case. But it may be less likely to extend that settled precedent to new facts until it receives further guidance from the Supreme Court.<div><div><div id="_com_1" class="msocomtxt" language="JavaScript"></div></div><div><div id="_com_4" class="msocomtxt" language="JavaScript"></div></div></div></div>

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Orders of Interest Roundup, Arthrex Style

Last Week in the Federal Circuit (July 6-10): Arthrex Strikes Again

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Excerpt: In a roundup of recent orders, we look at how the Federal Circuit is responding to the certiorari grant in Arthrex.