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-316296595{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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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

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Now that we have the Supreme Court’s big decision in Arthrex, which we wrote about <a href="/topics/Supreme-Court-Preserves-Again-Inter-Partes-Review-Despite-Finding-Constitutional-Violation.html">here</a>, many of us are wondering what the next steps will look like. We may know sooner rather than later. Today, the Federal Circuit issued a sua sponte order in pending appeals where one of the parties had appeared to raise an Appointments Clause challenge. The body of the short order reads:(1) Within 14 days from the date of this order, the parties that raised an Appointments Clause challenge shall file a brief, not to exceed 10 pages double-spaced, explaining how they believe their cases should proceed in light of Arthrex. Responses from the other parties, including the United States Patent and Trademark Office, subject to the same length restrictions, are due within 14 days thereafter.(2) All deadlines and proceedings are stayed.Based on these orders, we could start to see some action from the Federal Circuit in currently pending appeals in about a month.We also may get further news with the Supreme Court’s order list on Monday from tomorrow’s petition conference. That list may include orders granting, vacating, and remanding the many Federal Circuit decisions that had vacated and remanded Board decisions for new hearings under the Federal Circuit’s original Arthrex decision (now vacated). The United States filed several consolidated petitions for certiorari from those Federal Circuit decisions, which the Supreme Court has been holding. If those decisions are indeed returned to the Federal Circuit, it seems likely the Federal Circuit could issue similar orders to the above after recalling its mandates sending those cases back to the Patent Trial and Appeal Board.

Early Hints About What Happens Next After Arthrex

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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Early Hints About What Happens Next After Arthrex

CVSG in American Axle and Cases in General: What Does It Mean? A Q&A With Deanne Maynard

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Now that we have the Supreme Court’s big decision in Arthrex, which we wrote about here, many of us are wondering what the next steps will look like. We may kno

Substantive Orders Update

Case:  <a href="http://www.cafc.uscourts.gov/opinions-orders/21-1071.order.3-12-2021_1746953.pdf" target="_blank">Mylan Labs. Ltd. v. Janssen Pharm., N.V.</a>, No. 21-1071Originating tribunal:  Patent Trial and Appeal BoardDate:  March 12, 2021Panel:  Judges Newman, Moore, and Stoll, with Judge Moore writing the precedential orderResult:  Appeal dismissed, and mandamus deniedThe Court dove deep into procedure in our precedential order of interest:  a notice of appeal on the denial of institution of an IPR, a notice of appeal construed as a petition for a writ of mandamus, and oral argument on a motion to dismiss an appeal—all in one.  The case started out simple enough.  Patent owner sues alleged infringer.  Alleged infringer petitions for an IPR.  IPR is denied.  In most cases, that’s where the story ends.But here, the alleged infringer, would-be IPR petitioner got creative.  It appealed the denial of institution, cited the All Writs Act in its notice of appeal, and mentioned mandamus at argument.  So did it work; did the IPR petitioner get its denial of institution reviewed?  For those that don’t want to read to the end:  the appeal was dismissed, and mandamus was denied.First, the procedure:  shortly after the petitioner filed its notice of appeal, the patent owner moved to dismiss (which stays appellate briefing).  And as is the case when the PTO believes an appeal is improper, the Director refused to file the certified list.  But the Director also sua sponte exercised its right to intervene, and filed a response agreeing that the appeal should be dismissed.  On the same day that the Director filed its response supporting dismissal, the IPR petitioner filed its opposition, noting that its appeal will challenge the Board’s procedures and raise a due process challenge.  Because the IPR petitioner filed later in the day it was able to respond to the Director’s arguments (sometimes it does pay to not file too early).Then, in a bit of a rarity, the Court ordered oral argument on the motion to dismiss, and it directed the parties to address two questions at oral argument:<ol><li>If this court does not have jurisdiction to review this constitutional challenge in this appeal, is there any other vehicle or forum that would have jurisdiction to review a constitutional challenge to the denial of institution?</li><li> Should we interpret the Notice of Appeal, which cites 28 U.S.C. § 1651, as seeking, in the alternative, a writ of mandamus?  If so, how does that affect our jurisdiction and the availability of judicial review?</li></ol>In its decision, the Court didn’t pause long on whether it had jurisdiction over the IPR petitioner’s appeal.  Consistent with past precedent, the Court noted that Congress generally barred appeals from denials of institution.The Court, however, didn’t stop there.  In a footnote at the start of its opinion, it noted that the IPR petitioner’s citation to the All Writs Act and request for mandamus at oral argument was enough for the notice of appeal to be construed as a petition for a writ of mandamus.  The Court then held it had jurisdiction to consider the petition for a writ of mandamus:  “While there is no avenue for direct appeal of decisions denying institution, we conclude that judicial review is available in extraordinary circumstances by petition for mandamus.”  The Court further noted that Congress’s appeal bar “is silent with respect to mandamus,” so the Court saw “no reason, therefore, to think [Congress’s statute] also divests us of mandamus jurisdiction.”With jurisdiction in hand, the Court proceeded on.  But just because there’s jurisdiction, doesn’t mean mandamus is an easy hill to climb.  The Court reiterated that “mandamus is a ‘drastic and extraordinary remedy reserved only for really extraordinary causes.’”  On top of that standard, the Court noted that Congress gave the Director significant discretion whether or not to institute an IPR.  Given that discretion and the “prohibition on appeal of such decisions, [the Court] conclude[d] that there is no reviewability of the Director’s exercise of his discretion to deny institution except for colorable constitutional claims.”  Under that standard, the Court noted that “it is difficult to imagine a mandamus petition that challenges a denial of institution and identifies a clear and indisputable right to relief.”  Finally, the Court held there was no colorable due process challenge because there was no “deprivation of life, liberty, or property.”

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Order of Interest – Can You Challenge The Denial Of Institution Without Showing A Deprivation Of Life, Liberty, Or Property?

Order of Interest – Can You Challenge The Denial Of Institution Without Showing A Deprivation Of Life, Liberty, Or Property?

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Case:  Mylan Labs. Ltd. v. Janssen Pharm., N.V., No. 21-1071
Originating tribunal:  Patent Trial and Appeal Board
Date:  March 12, 2021
Panel:  Judges Newman, M

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 eye in the past couple weeks.Thryv and orders to show cause – As readers know, the Supreme Court’s decision in Thryv, Inc. v. Click-to-Call Technologies, L.P. seemed to reaffirm the strength of the prohibition against judicial review of the PTO Director’s determination whether to institute an IPR. The Federal Circuit looks to be responding by taking early action in cases where an appellant appears to be appealing from an institution decision. In two recent cases (see <a target="_blank" href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/bltef2f6909d425a16f/62731684220ab5285f519071/200817-cisco-osc.pdf">here</a> and <a target="_blank" href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/bltbc00205c02c43077/627316895f7b601eaaebcfba/200827-show-cause-click-to-call.pdf">here</a>) the Court issued orders to show cause why appeals shouldn’t be dismissed for lack of jurisdiction based on the bar against judicial review and Supreme Court and Federal Circuit precedent interpreting it (including Thryv). In both cases, the orders issued sua sponte, though they may have been prompted by the appellants’ docketing statements.Order denying attorney fees under Rule 38 – The Federal Circuit <a target="_blank" href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/bltdf2c5b9fc11e8399/627316894d9f8929712901bb/200826-cross-engineering-attorney-fees.pdf">denied</a> a motion for attorney fees under Federal Rule of Appellate Procedure 38. That rule allows appellate courts to sanction parties for bringing “frivolous” appeals, a high bar. In the recent order, which followed a mandamus denial, the Court found that the mandamus petitioner hadn’t “raised issues that are beyond the reasonable contemplation of fair-minded people” nor “dealt” unfairly with the Court or “misrepresented the law or facts.” More broadly, attorney fees motions on appeal rarely seem to succeed. From a quick search, I could only find three instances in the last ten years where the Federal Circuit granted such fees. That’s not to say the rule has no teeth. In one of the cases where the Court granted fees, it held the sanctioned party’s counsel jointly and severally liable for the fees because of counsel’s “misconduct in arguing the appeal.” Walker v. Health Int’l Corp., 845 F.3d 1148, 1157 (Fed. Cir. 2017). So although counsel may want to think twice about whether a motion for fees is warranted, to state the obvious, counsel should think even harder about whether they’re being candid with the Court or making arguments that border on frivolous.Order deferring on constitutional challenges to PTAB – The Federal Circuit <a target="_blank" href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/blt2882c332456472a8/6273168a4886af2aa2be109a/200902-new-vision-gaming-order.pdf">denied</a> a motion to decide a request for remand under Arthrex before the parties fully briefed the appeal. The appellant there filed an opening brief focused primarily on constitutional challenges to the PTAB’s authority, including arguing that Arthrex required a remand. The appellee responded by filing a motion asking the Federal Circuit to decide the Arthrex issue immediately since a remand under Arthrex could moot the need to address other issues. But as it often does, the Federal Circuit declined to decide the issue at the motions stage and instead directed the appellee “to raise its arguments in its response brief.” As regular Federal Circuit practitioners know, motions panels will often defer dispositive issues to the merits panel assigned to the case unless the right to relief is clear. That practice, combined with Rule 27’s requirement that parties generally file motions for dispositive relief before the opening appeal brief, may have led to the result here (though the order doesn’t explain).Order denying motion for oral argument as moot – As readers know, we’ve tracked (see <a href="https://federalcircuitry.mofo.com/topics/200730-order-of-interest-motion-oral-argument.html" target="_blank">here</a>) the success of requests to reinstate oral argument where the request is based on providing junior diverse attorneys an opportunity to argue. In the latest case involving such a request, rather than wait for the court to cancel and then ask for reinstatement, the appellant submitted a preemptive <a target="_blank" href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/blt8957f6463ec2b994/6273168b0cffdf1eb1369da0/200721-google-motion-oral-argument.pdf">motion</a> asking that argument be allowed because it would be the first Federal Circuit argument for a junior attorney. This week the Federal Circuit <a href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/blta35747162533c92c/6273168bb5ad5f2863c595b4/200901-google-oral-argument.pdf" target="_blank">denied</a> the motion, but only because the panel had already determined to hold oral argument so the request was “moot.” The order’s wording makes it sound like the choice to hold oral argument was made independent of the appellant’s request—we’ve previously explored what that might mean for the panel makeup and appeal outcome <a href="https://federalcircuitry.mofo.com/topics/Observations-on-Cancelled-Argument-Cases--Appellees-Always-Win-Right--Mostly.html" target="_blank">here</a>, <a href="https://federalcircuitry.mofo.com/topics/200807-are-some-federal-circuit-judges-more-likely-to-decide-a-case-without-oral-argument.html" target="_blank">here</a>, and <a href="https://federalcircuitry.mofo.com/topics/200706-fun-with-numbers-from-the-federal-circuits-first-three-months-of-telephonic-arguments.html" target="_blank">here</a>. (And good luck to my former co-clerk with her first Federal Circuit argument!)

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Orders of Interest Roundup

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In a roundup of recent orders, we look at how the Federal Circuit is responding to Thryv, how often the Court grants attorney fees under Rule 38, and more.

Orders of Interest Roundup

Federal Circuitry tracks important unreported orders and highlights those that may be of interest to practitioners before the Court.Case: Anacor Pharmaceuticals, Inc. v. FlatWing Pharmaceuticals, LLC, Nos. 2019-2264, -2265, -2266, -2267Originating tribunal: Patent Trial and Appeal BoardDate: July 29, 2020Panel: Per curiam (will be updated once panel is disclosed) **Aug. 5 update: Panel was Judges Lourie, O'Malley, and Chen. Judges O'Malley and Chen (with Judge Bryson) were on the panel that granted the earlier motion to reinstate oral argument in a different case.Result: Motion to reinstate oral argument deniedAs readers are aware and as we noted in earlier <a target="_blank" href="/topics/200722-september-calendar-released-expect-the-submission-trend-to-continue.html">posts</a>, the Federal Circuit has been removing many cases from its telephonic argument calendar during the COVID-19 pandemic—particularly with cases originating from the PTAB. A few months ago, the Federal Circuit <a rel="noopener noreferrer" target="_blank" href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/blt991f1e6d911f2066/627316728e09542a15b7de9f/cafc-in-re-publicover-order.pdf">granted </a>a <a rel="noopener noreferrer" target="_blank" href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/blteb8fbc96aae2763f/627316735f7b601eaaebcfb2/cafc-in-re-publicover-mot.pdf">motion </a>to reinstate oral argument in an appeal; the motion explained that the argument would be the first Federal Circuit oral argument for a junior, diverse attorney. On the other side of that appeal was the government, which stated that it “does not take any position on the motion” and “respects” the “appellant’s interest in arguing the case.” Many in the bar applauded the efforts of the movant there, as well as the decision by the Court to reinstate the oral argument. Having once been a junior diverse attorney, I remember having supportive clients and mentors give me early opportunities to argue and now try to make similar opportunities available to those more junior.Yesterday, the Federal Circuit <a rel="noopener noreferrer" target="_blank" href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/blt3b4cf3de1dfe07a2/627316730d4d8e1d7f10f29a/cafc-anacor-flatwing-order.pdf">denied </a>a similar <a rel="noopener noreferrer" target="_blank" href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/blt30a66783bf8dbd0f/62731674a1a1dd2aa9f6c9e6/cafc-anacor-flatwing-mot.pdf">motion </a>to reinstate an oral argument. Like the prior motion, this one noted that granting it would promote diversity in the profession and give a junior lawyer his first oral argument opportunity. Unlike the prior motion, however, this one was <a rel="noopener noreferrer" target="_blank" href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/blt7cc7fe5ea41b42f4/627316754886af2aa2be1092/cafc-anacor-flatwing-opp.pdf">opposed</a>. The other side was not the government, but a private party. The party contended that oral argument was unnecessary to resolve the case and would impose additional litigation costs on the parties. In opposing, the party noted that counsel could instead seek pro bono opportunities to gain argument experience.Ultimately, since the order doesn’t explain its ruling, we cannot know why the Court reinstated oral argument in one case but denied it in another. It may be that the Court is more willing to grant such motions if they are unopposed—when both the appellant and the appellee are willing to bear the time and expense for the junior attorney to argue the case. Or it may relate to the timing of the request for reinstatement. Here, the request was made eight days after the Court cancelled oral argument, which was just two weeks before the oral argument had been scheduled. In the earlier case in which argument was reinstated, the request was made just three days after argument had been cancelled, which was over three weeks before the original argument date. Whatever the reason, it is noteworthy that clients, law firms, and the Court have shown a willingness to support early argument opportunities for junior lawyers.

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Order of Interest – Another Motion to Reinstate Oral Argument

Order of Interest – Another Motion to Reinstate Oral Argument

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We look at the Federal Circuit's recent denial of a junior attorney's bid to reinstate his first Federal Circuit argument and potential reasons why the Court ma

Federal Circuitry tracks important unreported orders and highlights those that may be of interest to practitioners before the Court.Case:  Kaszuba v. Iancu, No. 20-1208Originating tribunal:  Trademark Trial and Appeal BoardDates:  May 5, 2020; June 19, 2020Panel:  Lourie, Dyk, Reyna (per curiam)Result:  Appeal dismissed; appeal later reinstated and summarily affirmed insteadThese recent orders in Kaszuba v. Iancu caught our eye because they involve a motions panel sua sponte reversing its own prior order and addressing an interesting statutory question about causes of action to appeal from the TTAB under 15 U.S.C. § 1071(a)(1).Appellant Kaszuba owns a registered word mark to “COYOTE MOTORCYCLES.”  But he failed to file a required declaration and renewal application by the deadline.  Kazuba blamed this failure on problems with the PTO’s electronic filing system, which prevented him from filing until after the midnight Eastern Time cutoff.  After the PTO cancelled his registration, he petitioned the Director to reinstate it, arguing that the PTO discriminates against those outside the Eastern Time Zone.  The Director dismissed his petition, and Kaszuba appealed.On appeal, the PTO filed a notice that it was not filing a certified list because it believed that the Court lacked jurisdiction over the appeal.  As one ground for that, the PTO argued that 15 U.S.C. § 1071(a)(1), in relevant part, authorizes only “a registrant who has filed an affidavit” or “an applicant for renewal” to appeal, but Kaszuba never successfully filed an affidavit or renewal application.  Presumably in response to that, the Court issued a show cause order directing Kaszuba to explain the basis for the Court’s jurisdiction.After briefing on the show cause order, a motions panel ordered the appeal dismissed.  The panel’s order explained that the issue was not one of jurisdiction—which goes to court power to hear a case—but one of cause of action—which goes to whether a particular plaintiff can invoke a court’s power.  The order concluded that Kaszuba lacked a cause of action because the ordinary meaning of “an applicant for renewal” in Section 1071(a)(1) excludes a person “who merely attempted or prospectively wants to file an application.”Yet that was not the end of the appeal.  Roughly six weeks after dismissing the appeal but before the mandate issued, the same motions panel issued two new orders, apparently sua sponte.  One order vacated the prior order and reinstated the appeal, and the other summarily affirmed (rather than dismissed) the appeal.The new summary affirmance order, critically, interpreted Section 1701(a)(1) differently and concluded that Kaszuba did have a cause of action.  This time, the Court held that the statutory term “applicant for renewal” is “broad enough to encompass someone who formally applied as well as someone who was in the process of completing the renewal application but was unlawfully denied the opportunity to file it.”  Because Kaszuba alleged that included him, he had a cause of action and could appeal.  In the end, though, the Court saw no merit to Kaszuba’s appeal and so summarily disposed of the case without any briefing beyond the show cause order.One interesting question about this case is what led to the sua sponte change.  One possibility is that a colleague within the Court raised an issue about the original order, leading the panel to reconsider.  Because the original dismissal order was nonprecedential, the clerk’s office likely issued it under the Court’s internal operating proceedings without circulating it to the entire Court.  Fed. Circuit IOP #10.5.  That means the first chance other judges would have to consider the panel’s interpretation of 15 U.S.C. § 1071(a)(1) was after the order issued.  It’s thus possible one or more judges could have approached the panel after the order issued.  Although we’ll likely never know because such deliberations are not public, if that did happen here it would be part of a great tradition of collegiality at the Federal Circuit.

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Order of interest – Sua sponte panel reversal and causes of action to appeal from the TTAB

Order of interest – Sua sponte panel reversal and causes of action to appeal from the TTAB

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Federal Circuitry tracks important unreported orders and highlights those that may be of interest to practitioners before the Court.
Case:  Kaszuba v. Iancu, No