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>We are Morrison Foerster — a global firm of exceptional credentials. Our clients include some of the largest financial institutions, investment banks, Fortune 100, and technology and life sciences companies. The Financial Times has named the firm to its lists of most innovative law firms in North America and Asia every year that it has published its Innovative Lawyers Reports in those regions. Our lawyers are committed to achieving innovative and business-minded results for our clients, while preserving the differences that make us stronger.

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Brian Matsui is a partner in Morrison Foerster’s Appellate and Supreme Court practice. For 20 years, Brian has been a go-to appellate advocate for sophisticated clients in complex appeals nationwide. Chambers USA reports Brian is a “‘terrific’ practitioner with a ‘warm and enthusiastic’ approach to matters.”Clients turn to Brian for his substantial experience with appeals in the Federal Circuit, praising him as “an invaluable advocate in patent matters.” (Chambers USA) He has argued more than 15  times in that Court, winning appeals from both district courts and the Patent Trial and Appeal Board. Brian excels at applying legal principles to complex technologies in a clear, compelling way. He has handled appeals in a myriad of industries, including mobile devices, pharmaceuticals, medical devices, semiconductors, and software. Brian is an Editor of Morrison & Foerster’s <a href="https://federalcircuitry.mofo.com/">Federal Circuitry</a> blog, which takes a data-driven approach to analyzing the Federal Circuit and its decisions.Brian also briefs and argues cases in appellate courts nationwide. He has argued multiple times in the D.C., Second, Ninth and, Eleventh. His arguments include significant victories in class action appeals and in appeals for leading financial services companies. For example, Brian 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.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. Legal 500 US recommends him for appellate litigation, and the National Law Journal named Brian a “Minority 40 under 40.”Brian 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. 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 of 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 on the Ninth Circuit and Judge David F. Levi on 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://www.mofo.com/resources/video-audio/220114-broadcom-corporation-v-renesas-matsui" target="_self">Renesas Electronics Corporation v. Broadcom Corporation</a> (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>Chugai Pharmaceutical Co. v. Alexion Pharmaceuticals, Inc. (D. Del.) Represented Chugai in patent litigation involving Chugai’s revolutionary antibody recycling technology. The team secured a $775 million for Chugai hours before jury selection and opening statements at trial.</li><li><a href="https://www.mofo.com/resources/video-audio/210706-cr-bard-v-medline-industries.html">C.R. Bard Inc. v. Medline Industries, Inc </a>(Fed. Cir.) Won vacatur of three Patent Trial and Appeal Board decisions on obviousness.</li><li><a href="http://www.mofo.com/resources/video-audio/200515-william-paulus-v-ocera-therapeutics-inc.html">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="http://www.mofo.com/resources/video-audio/190507-arch-development-corp-v-osi-pharmaceuticals-llc.html">ARCH Development Corp. v. OSI Pharmaceuticals, LLC </a>(12:40) (Fed. Cir.) Successfully argued and briefed appeal involving the invalidation of patent claims directed to cancer treatment methods.</li><li><a href="http://www.mofo.com/resources/video-audio/20190805-neev-v-alcon-lensx-inc.html">Neev v. Alcon LenSx, Inc. </a>(13:31) (Fed. Cir.) Successfully argued and briefed appeal involving claim construction and non-infringement issues in a suit involving surgical lasers.</li><li><a href="http://www.mofo.com/resources/video-audio/200410-kurtz-v-costco.html">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="http://www.mofo.com/resources/video-audio/161117-gregory-bartko-v-sec.html">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><li><a href="http://www.mofo.com/resources/video-audio/170113-monkeymedia-inc-v-buena-vista-home-entertainment.html">Monkeymedia, Inc. v. Buena Vista Home Entertainment </a>(12:35) (Fed. Cir.) Successfully argued and briefed appeal involving the invalidation of patent claims directed to the transmission of video content, including over the Internet.</li><li>New York State Citizens’ Coalition v. Velez (2d Cir.) Successfully argued and briefed appeal in which the Second Circuit recognized an implied private right of action under the Child Welfare Act for parents of children in foster care.</li></ul><h4>Speaking Engagements</h4><ul><li>“Federal Circuit Practice: Cross-Cutting Practice Considerations Across the Court’s Diverse Jurisdiction,” Federal Circuit Bar Association, Bench & Conference, June 22, 2021</li><li>“Effective and Persuasive Brief Writing”, PLI’s Appellate Advocacy 2018, April 30, 2019 and April 19, 2018</li><li>"The 18th Annual Berkeley-Stanford Advanced Patent Law Institute," Advanced Patent Law Institute, December 15, 2017</li></ul><h4>Publications</h4><ul><li>Supreme Court Preserves (Again) Inter Partes Review Despite Finding Constitutional Violation,” Morrison & Foerster Client Alert, June 20, 2021</li><li>“Close Enough: Horseshoes, Hand Grenades, and Specific Personal Jurisdiction, ” Morrison & Foerster Client Alert, March 2021</li><li>“Once More Into the Jurisdictional Morass: Supreme Court Grapples With Specific Jurisdiction at Oral Argument in Ford Cases,” Morrison & Foerster Client Alert, October 2020</li><li>“Fun with Numbers from the Federal Circuit’s First Three Months of Telephonic Arguments,” Morrison & Foerster Client Alert, July 2020</li><li> “What’s Changing at the Remote Fed. Circ.,” Law360, May 6, 2020</li><li>“Supreme Court IP Decision Preserves Inter Partes Review Process,” Morrison & Foerster Client Alert, April 24, 2018</li><li>“The Federal Circuit Goes Remote,” Morrison & Foerster Client Alert, April 14, 2020</li><li>“Do We Already Know the Federal Circuit’s Final Answer in Arthrex?” Morrison & Foerster Client Alert, March 2020</li><li>“Start Your Engines: The U.S. Supreme Court Will Yet Again Review the Constitutional Limits of Personal Jurisdiction in a Pair of Cases Involving Ford Motor Company,” Morrison & Foerster Client Alert, January 21, 2020</li><li>“All or Nothing: Supreme Court Prohibits PTAB From Partially Instituting AIA Petitions Challenging Patents,” Morrison & Foerster Client Alert, April 25, 2018</li><li>“Supreme Court IP Decision Preserves Inter Partes Review Process,” Morrison & Foerster Client Alert, April 24, 2018</li><li>The Incredible Shrinking Doctrine of Specific Personal Jurisdiction: The U.S. Supreme Court’s Decision In Bristol-Myers Squibb Company v. Superior Court of California," Morrison & Foerster Client Alert, June 20, 2017</li><li>"Reaffirming Personal Jurisdiction Limits At High Court," Law360, June 1, 2017</li><li>"Gone, Like A Freight-Train: The U.S. Supreme Court Reaffirms Longstanding Constitutional Limits on Personal Jurisdiction in BNSF Railway Co. v. Tyrrell," Morrison & Foerster Client Alert, May 31, 2017</li><li>"Here We Go Again: Supreme Court Hears Oral Argument In Personal Jurisdiction Cases," Law360, April 27, 2017</li><li>“Why the Supreme Court Must Revisit Personal Jurisdiction,” Law360, February 1, 2017</li><li>“What Part Did You Not Understand? Recent State-Court Decisions Require the U.S. Supreme Court to Address Yet Again – The Constitutional Limits on Personal Jurisdiction,” Morrison & Foerster Client Alert, January 23, 2017</li><li>“Supreme Court Defers to Patent Office on IPR Procedure, Cuozzo Speed Tech., LLC v. Lee,” Morrison & Foerster Client Alert, June 20, 2016</li><li>“Supreme Court Continues Focus on IP,” Morrison & Foerster Client Alert and re-published in IPFrontline, May 2, 2016</li><li>MoFo IP Newsletter, April 2016, April 21, 2016</li><li>“Will the Supreme Court Put the Brakes on the IPR Trend? Cuozzo Speed Tech., LLC v. Lee,” Morrison & Foerster Client Alert, January 19, 2016</li><li>“Will the Supreme Court Save Business Method Patents? Alice Corp. Pty. Ltd. v. CLS Bank Int’l,” Morrison & Foerster Client Alert, April 8, 2014</li><li>“Don’t Bet on Finding Personal Jurisdiction Where the Injury is Felt; the Supreme Court Further Restricts the Scope of Specific Personal Jurisdiction: Walden v. Fiore,” Morrison & Foerster Client Alert, February 25, 2014</li><li>“An Important Victory for Airlines in Defamation Case,” Law360, January 30, 2014</li><li>“Airlines Are Entitled to Immunity under the ATSA Unless Statements Are Materially False,” Morrison & Foerster Client Alert, January 28, 2014</li><li>“The Supreme Court Curtails General Personal Jurisdiction Over Foreign Parent Corporations: Daimler AG v. Bauman,” Morrison & Foerster Client Alert, January 14, 2014</li><li>“Supreme Court to Decide Whether Inducement of Patent Infringement Requires That a Single Entity Be Liable for Direct Infringement Requires That a Single Entity Be Liable for Direct Infringement,” Morrison & Foerster Client Alert, January 10, 2014</li><li>“More Than Another Alien Tort Statute Case: The Supreme Court May Limit Personal Jurisdiction ,” Morrison & Foerster Client Alert, October 21, 2013</li><li>“ATSA Immunity: Supreme Court Grants Cert to Decide Bounds for Applying Immunity Under the Aviation Transportation Security Act,” Morrison & Foerster Client Alert, June 18, 2013</li><li>“A Fractured Federal Circuit Creates More Questions Than Answers: CLS Bank Int’l v. Alice Corp., No. 2011-1301,” Morrison & Foerster Client Alert, May 13, 2013</li><li>“The Supreme Court Again Revisits (And May Rein In) Personal Jurisdiction: Two Cases Now Up Next Term,” Morrison & Foerster Client Alert, April 29, 2013</li><li>“The Supreme Court Limits Personal Jurisdiction over Foreign Defendants: A Potential End to the Stream of Commerce Theory,” June 30, 2011</li><li>“The U.S. Supreme Court Rejects ‘Extraterritorial’ Application Of the Securities Exchange Act: An Analysis of Morrison v. NAB,” BNA’s Corporate Counsel Weekly, October 6, 2010</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 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 R. Matsui

Seth Lloyd, a member of Morrison Foerster’s Appellate and Supreme Court practice, has briefed dozens of appeals in federal and state courts of appeals 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.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 five 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 vice 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/">Federal Circuitry</a> blog, which takes a data-driven approach to analyzing the Federal Circuit and its decisions.Seth’s clients and peers recognize his expertise. Legal 500 has noted that Seth is a Key Lawyer, Super Lawyers named him a Rising Star, and Best Lawyers in America named him to its Ones to Watch list, all for appellate practice. Seth is a member of the Edward Coke Appellate Inn of Court. Seth also 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.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="https://www.mofo.com/resources/video-audio/220309-apple-inc-v-mph-technologies" target="_self">Apple Inc. v. MPH Technologies Oy</a> (Fed. Cir.) Argued for inter partes review petitioner in challenge to computer security claims</li></ul><div><ul><li><a href="https://www.mofo.com/resources/video-audio/220114-renesas-electronics-v-broadcom-corporation" target="_self">Renesas Electronics Corp. v. Broadcom Corp.</a> (Fed. Cir.) Argued and won affirmance for inter partes review petitioner in challenge to electronic device claims</li><li><a href="https://www.mofo.com/resources/video-audio/200610-google-llc-v-netlist-inc.html">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="https://www.mofo.com/resources/video-audio/170609-netlist-inc-v-diablo-technologies.html">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="https://www.mofo.com/resources/video-audio/201026-nicole-k-v-stigdon.html">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="https://www.mofo.com/resources/video-audio/200306-strike-3-holdings.html">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="https://www.mofo.com/resources/video-audio/161118-harris-v-mangum.html">Harris v. Mangum </a>(00:02) (9th Cir.) Argued as court-appointed amicus defending indigent prisoner’s right to a guardian ad litem</li><li><a href="https://www.mofo.com/resources/video-audio/180808-netlist-inc-v-sandisk-llc.html">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></ul></div><h4>Additional Representative Matters</h4><ul><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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Associate

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 W. Lloyd

Sam Goldstein is an associate in Morrison Foerster’s Appellate and Supreme Court Practice Group in the Washington, D.C. office.Sam's practice focuses on complex appellate matters. He has prepared certiorari petitions and amicus briefs for the Supreme Court of the United States, and has briefed appeals in federal and state courts of appeals throughout the country. His experience spans many areas of law, including patent appeals before the Federal Circuit as well as appeals involving arbitration, class actions, copyright, employment law, securities, and the False Claims Act. He has also presented oral argument in the Ninth Circuit.Sam contributes to MoFo’s appellate blogs: Left Coast Appeals, which keeps tabs on the Ninth Circuit, and Federal Circuitry, which takes a data-driven approach to analyzing the Federal Circuit and its decisions.Before joining Morrison Foerster, Sam served as a law clerk for Judge Ketanji Brown Jackson of the U.S. Court of Appeals for the D.C. Circuit and the U.S. District Court for the District of Columbia, and for Judge Richard G. Taranto of the U.S. Court of Appeals for the Federal Circuit.Sam earned his J.D. from Stanford Law School, where he was an articles editor for the Stanford Law Review, a lead editor for the Stanford Technology Law Review, and a member of the Supreme Court Litigation Clinic. During law school, he interned in the Appellate Division of the U.S. Attorney’s Office for the District of Columbia. Sam received his A.B. magna cum laude from Harvard University in chemistry and physics.Sam is admitted to practice in California and the District of Columbia.

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Sam Goldstein is an associate in Morrison Foerster’s Appellate and Supreme Court Practice Group in the Washington, D.C. office. Sam’s practice focuses on complex appellate matters, including patent appeals before the Federal Circuit. Before joining Morrison & Foerster, Sam served as a law clerk for Judge Richard G. Taranto of the United States Court of Appeals for the Federal Circuit. Sam earned his J.D. from Stanford Law School, where he was an articles editor for the Stanford Law Review, and his A.B. magna cum laude from Harvard University in chemistry and physics.

Sam Goldstein is an associate in Morrison & Foerster’s Appellate and Supreme Court Practice Group in the Washington, D.C. office. Sam’s practice focuses on complex appellate matters, including patent appeals before the Federal Circuit. Before joining Morrison & Foerster, Sam served as a law clerk for Judge Richard G. Taranto of the United States Court of Appeals for the Federal Circuit. Sam earned his J.D. from Stanford Law School, where he was an articles editor for the Stanford Law Review, and his A.B. magna cum laude from Harvard University in chemistry and physics.

Samuel Benjamin Goldstein

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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=""><span class="rich-text-component-embed" data-component-info="{&quot;title&quot;:&quot;Federal Circuitry - Rehearing CFRs&quot;,&quot;embed_code&quot;:&quot;&lt;iframe allowfullscreen=\&quot;true\&quot; frameborder=\&quot;0\&quot; height=\&quot;2350\&quot; width=\&quot;100%\&quot; src=\&quot;https://public.tableau.com/views/RehearingCFRsandSubstantiveOrders/RehearingCFRs?:language=en&amp;amp;:display_count=y&amp;amp;:origin=viz_share_link&amp;amp;:showVizHome=no&amp;amp;:embed=yes&amp;amp;:showShareOptions=false\&quot;&gt;&lt;/iframe&gt;&quot;,&quot;locale&quot;:&quot;en-us&quot;,&quot;uid&quot;:&quot;blt602374a5cb88119e&quot;,&quot;_version&quot;:7,&quot;heights&quot;:{&quot;desktop&quot;:2350,&quot;_trace&quot;:&quot;nav;array_node;drop_down;array_node;description;heights&quot;,&quot;_key&quot;:&quot;heights&quot;},&quot;publish_details&quot;:{&quot;environment&quot;:&quot;bltf4674cd9142c5020&quot;,&quot;locale&quot;:&quot;en-us&quot;,&quot;time&quot;:&quot;2022-07-24T17:59:31.978Z&quot;,&quot;user&quot;:&quot;bltb12aec4341d41463&quot;,&quot;_trace&quot;:&quot;nav;array_node;drop_down;array_node;description;publish_details&quot;,&quot;_key&quot;:&quot;publish_details&quot;},&quot;_fetched&quot;:true,&quot;_content_type_uid&quot;:&quot;embed_content&quot;,&quot;_trace&quot;:&quot;nav;array_node;drop_down;array_node;description&quot;,&quot;_key&quot;:&quot;key&quot;}" data-component-type="embed_content" data-component-inline="false"></div>

En Banc Tracker

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=""><span class="rich-text-component-embed" data-component-info="{&quot;title&quot;:&quot;Federal Circuitry - Substantive Orders List&quot;,&quot;embed_code&quot;:&quot;&lt;iframe src=\&quot;https://public.tableau.com/views/RehearingCFRsandSubstantiveOrders/SubstantiveOrders?:language=en&amp;amp;:display_count=y&amp;amp;:origin=viz_share_link&amp;amp;:showVizHome=no&amp;amp;:embed=yes&amp;amp;:showShareOptions=false\&quot; width=\&quot;100%\&quot; height=\&quot;3030\&quot; allowfullscreen=\&quot;true\&quot; frameborder=\&quot;0\&quot;&gt;&lt;/iframe&gt;&quot;,&quot;width&quot;:1042,&quot;height&quot;:3030,&quot;locale&quot;:&quot;en-us&quot;,&quot;uid&quot;:&quot;blt4edb4c3faea45d79&quot;,&quot;_version&quot;:1,&quot;publish_details&quot;:{&quot;environment&quot;:&quot;bltf4674cd9142c5020&quot;,&quot;locale&quot;:&quot;en-us&quot;,&quot;time&quot;:&quot;2022-07-08T18:52:01.845Z&quot;,&quot;user&quot;:&quot;blt36ddfa4ec5e5dbda&quot;,&quot;_trace&quot;:&quot;nav;array_node;drop_down;array_node;description;publish_details&quot;,&quot;_key&quot;:&quot;publish_details&quot;},&quot;_fetched&quot;:true,&quot;_content_type_uid&quot;:&quot;embed_content&quot;,&quot;_trace&quot;:&quot;nav;array_node;drop_down;array_node;description&quot;,&quot;_key&quot;:&quot;key&quot;}" data-component-type="embed_content" data-component-inline="false"></div>

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Last Week In The Federal Circuit (September 6 – September 9): Repeating Litigation, Again

How Often Do Federal Circuit Judges Sit 2022?

Last Week In The Federal Circuit (August 29 – September 2): Capability Claims in the Modern Era

Is It Ever Too Late To Be Rule 36’d?

Last Week In The Federal Circuit (August 22 – August 26): To Appeal Or Not To Appeal, That Is The Question

Although this was the week of the July argument sitting, that didn’t slow the Court down in issuing decisions with seventeen total. Below we give our usual week’s statistics and case of the week—our highly subjective selection based on whatever case piqued our interest.Precedential opinions: 3, plus 1 precedential orderNon-precedential opinions: 11Rule 36: 3Longest pending case from argument: <a href="http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/19-1048.OPINION.7-8-2020_1615429.pdf" target="_blank">Fitbit, Inc. v. Valencell, Inc.</a>, No. 19-1048 (309 days from argument to decision)Shortest pending case from argument (non-Rule 36): <a href="http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/19-2308.OPINION.7-10-2020_1616762.pdf" target="_blank">J.S.T. Corporation v. ITC</a>, No. 19-2308 (4 days from argument to decision)Case of the week: <a href="http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/19-2349.ORDER.7-7-2020_1614897.pdf" target="_blank">In re Boloro Global Ltd.</a>, No. 19-2349 (July 7, 2020)Panel: Judges Lourie, Dyk, and Reyna, with Judge Dyk writing the opinion.Read this case if: you’re involved in a PTAB appeal by a patent applicant.This week we’re looking at a new precedential order extending Arthrex to PTAB decisions by initial patent applicants. As you likely know since you’re reading this blog (and as we explained <a href="https://federalcircuitry.mofo.com/topics/200320-do-we-already-know-the-federal-circuits-final-answer-in-arthrex.html" target="_blank">here</a>), last Halloween the Federal Circuit held that the administrative patent judges who decide inter partes reviews were unconstitutionally appointed principal officers. To remedy that, the Court severed the portion of the Patent Act restricting those judges’ removal. Since then, the Federal Circuit has vacated many IPR final written decisions decided before the Court’s Arthrex decision and remanded them for a new hearing before a new panel of PTAB judges.But unlike Arthrex, Boloro involved a patent applicant (rather than patent owner) appealing a PTAB decision from an initial examination. The Court held that was a distinction without a difference under Arthrex and VirnetX Inc. v. Cisco Systems, Inc., 958 F.3d 1333 (Fed. Cir. 2020). VirnetX extended Arthrex to decisions by PTAB judges in inter partes reexaminations based partly on the fact that the same PTAB judges decide IPRs and those reexaminations. 958 F.3d at 1335-36. Yet VirnetX appeared to leave open whether Arthrex should extend “to all Board proceedings.” IdBoloro now holds that Arthrex also extends to initial examination proceedings. In response to the Court’s request for supplemental briefing, the Director had conceded that under Arthrex and VirnetX PTAB judges “were principal officers for purposes of all governmental functions of their office.” Given that concession, the Court held that the same remedy of a new hearing before a new panel of PTAB judges should apply. Even though the Director argued that he had far greater control over Board proceedings involving patent applicants, the Court saw “no principled reason to depart here from the resulting remedy applied in Arthrex and VirnetX.” The Court reached this conclusion based on the motion briefing and responses to two court requests for supplemental briefing; there was no merits briefing or argument.Boloro likely will have only limited effect for now, because the Federal Circuit has limited Arthrex’s reach to PTAB final written decisions issued before October 31, 2019, and cases where the appellant sufficiently preserved on appeal an Appointments Clause challenge. Yet the Federal Circuit may not have the final word—there are now multiple petitions for certiorari challenging different aspects of Arthrex. Some of those petitions argue that the Federal Circuit’s Arthrex ruling could not cure the Appointments Clause problem. Depending on what happens at the Supreme Court, Boloro could become far more significant (or be effectively overruled).

Seth Lloyd, a member of Morrison & Foerster’s Appellate and Supreme Court practice, has briefed dozens of appeals in federal and state courts nationwide. Seth has presented oral arguments in the U.S. 

Seth Lloyd

Clients turn to Brian for his substantial experience in patent appeals in the Federal Circuit. He has argued 17 times in that Court, winning appeals from both district courts and the Patent Trial and 

Brian Matsui

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

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

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Although this was the week of the July argument sitting, that didn’t slow the Court down in issuing decisions with seventeen total. Below we give our usual week

Last Week in the Federal Circuit

It was a short week in the Federal Circuit with the Fourth of July holiday as the Federal Circuit ramps up for the July argument sitting. All said, there were only 10 decisions by the Court. As usual, we provide last week’s statistics and our case of the week—our highly subjective selection based on whatever case piqued our interest.Precedential opinions: 5Non-precedential opinions: 5Rule 36: 0Longest pending case from argument: Sharpe v. Secretary of Health and Human Services, No. 19-1951 (120 days from argument to decision)Shortest pending case from argument (non-Rule 36): Tie between CardioNet, LLC v. InfoBionic, Inc., No. 20-1018 and Braemar Manufacturing, LLC v. The Scottcare Corporation, No. 19-2263 (27 days from argument to decision)Case of the week: <a href="http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/19-2087.OPINION.7-1-2020_1612569.pdf" target="_blank">Electronic Communication Technologies, LLC v. ShoppersChoice.com LLC</a>, No. 19-2087 (July 1, 2020)Panel: Chief Judge Prost and Judges Dyk and Wallach, with Judge Wallach writing the opinion.Read this case if: you have an exceptional case motion against a previously litigious plaintiff.In this case, a patent plaintiff could not escape its long record of past litigation conduct. Patentee Electronic Communication Technologies (ECT) had a habit of filing patent infringement lawsuits seeking “low-value ‘license fees’” to force settlements. In fact, from 2011-2015, ECT had sued at least 150 defendants alleging infringement of various claims within the same patent family. When ECT sued ShoppersChoice on claims in that patent family (and lost on 101 grounds), ShoppersChoice sought attorney’s fees.  The district court denied fees finding the case not exceptional.The Federal Circuit held that the district court abused its discretion. Quoting Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545 (2014), the Federal Circuit explained that an “‘exceptional’ case is simply one that stands out from others with respect to the substantive strength of a party’s litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated.” For starters, the Federal Circuit held that the district court clearly erred by failing to address ECT’s past litigation conduct. In particular, the Federal Circuit highlighted the sheer number of lawsuits ECT had filed and threated to file, including “ECT’s demand for a low-value settlement—ranging from $15,000 to $30,000—and subsequent steps—such as failure to proceed in litigation past claim construction hearings” in other cases. The Court suggested that this conduct “indicates the use of litigation to achieve a quick settlement with no intention of testing the strength of the patent or its allegations of infringement.” In addition, the Federal Circuit emphasized a decision by another district court in a different lawsuit that awarded fees against ECT. The Court explained that ruling recited ECT’s pattern of unreasonable litigation conduct and found that “no reasonable patent litigant” would have believed the asserted claim was viable. Lastly, although not critical to its decision, the Court noted that the district court applied the incorrect attorney’s fees statute—15 U.S.C. § 1117 in the Lanham Act rather than 35 U.S.C. § 285 in the Patent Act. The Federal Circuit told the district court to apply the right statute on remand.

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Last Week in the Federal Circuit (June 29-July 2): Patent Plaintiff Can’t Escape Past

Last Week in the Federal Circuit (June 29-July 2): Patent Plaintiff Can’t Escape Past

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It was a short week in the Federal Circuit with the Fourth of July holiday as the Federal Circuit ramps up for the July argument sitting. All said, there were o

Patent - Attorney Fees

Last week the Federal Circuit issued 7 decisions, including cases addressing Article III standing and the role of common sense in obviousness analyses. We provide last week’s statistics and our case of the week, which focuses on the recurring issue of when a claim’s preamble limits its scope.Precedential opinions: 5Non-precedential opinions: 1Rule 36: 1Longest pending case from argument: Avalos v. Dep’t of Housing and Urban Development, No. 19-1118 (206 days from argument to decision)Shortest pending case from argument (non-Rule 36): SolarWorld Americas, Inc. v. United States, No. 19-1591 (79 days from argument to decision)Case of the week: <a target="_blank" href="http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/19-1622.OPINION.6-25-2020_1609475.pdf">Shoes by Firebug LLC v. Stride Rite Children’s Group, LLC</a>, No. 19-1622 (June 25, 2020)Panel: Judges Lourie, Moore, and O’Malley, with Judge Lourie writing the opinion.You should read this case if: you have a matter involving a dispute about whether a claim preamble is limiting.As the Federal Circuit often observes, there is no “litmus test” to determine whether a claim’s preamble limits its scope. The absence of such a bright-line rule led to this dispute about a particularly “bright” invention: light-up shoes.Firebug owns patents directed to illumination systems in footwear. It sued Stride Rite, a competitor in the children’s footwear market, alleging that Stride Rite infringed two of Firebug’s patents. In response, Stride Rite petitioned for inter partes review of those patents, asserting that the challenged claims were unpatentable for obviousness over prior-art references disclosing light-up shoes. The Board determined that the claim preambles in both patents were not limiting. It went on to hold all challenged claims unpatentable as obvious. Firebug appealed.The Federal Circuit disagreed with part of the Board’s claim-preamble analysis but ultimately affirmed the Board’s decisions. The Court reiterated its rule that “a preamble is not limiting ‘where a patentee defines a structurally complete invention in the claim body and uses the preamble only to state a purpose or intended use for the invention.”The preambles of both patents in the appeal recited “[a]n internally illuminated textile footwear,” but the limitations following the preambles differed. In one patent, the claim body included “a footwear” that “comprises a sole and an upper.” As to that patent, the Court agreed with the Board that the preamble was not limiting, since the claim body recited a structurally complete invention. But in the other patent, the claim body referred to “footwear” only in describing the configuration of the illumination system—“the illumination system being housed within the footwear.” Thus, the Court disagreed with the Board and determined that the preamble in that patent was limiting, since the claim body’s structural limitations relied on the “footwear” recited in the preamble. Nonetheless, the Court concluded that the Board’s error was harmless, as the Board’s findings supported obviousness under the correct claim construction.Samuel B. Goldstein co-authored this article as an associate in our Appellate + Supreme Court practice before departing the firm for a judicial clerkship.

Sam Goldstein is an associate in Morrison & Foerster’s Appellate and Supreme Court Practice Group in the Washington, D.C. office.
Sam’s practice focuses on complex appellate matters. He has prepared c

Samuel Goldstein

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Last Week in the Federal Circuit (June 22-26): Light-up shoes and limiting preambles

Last Week in the Federal Circuit (June 22-26): Light-up shoes and limiting preambles

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Last week the Federal Circuit issued 7 decisions, including cases addressing Article III standing and the role of common sense in obviousness analyses. We provi

Patent - Claim Construction

It was a busy week at the Federal Circuit, as the Court issued 15 decisions, including a number of Rule 36 affirmances in cases argued during its June sitting. Our case of the week highlights a patent case involving several civil procedure issues: claim preclusion and a related doctrine known as the Kessler doctrine.Precedential opinions: 5Non-precedential opinions: 5Rule 36: 5Longest pending case from argument: Dropbox, Inc. v. Synchronoss Technologies, Inc., Nos. 19-1765, 19-1767, 19-1823 (162 days from argument to decision)Shortest pending case from argument (non-Rule 36): Tie between Oliva v. Dep’t of Veterans Affairs, No. 19-1990, and Alford v. United States, No. 19-1678 (39 days from argument to decision)Case of the week: <a href="http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/19-1918.OPINION.6-17-2020_1605082.pdf" target="_blank">In re: PersonalWeb Technologies LLC</a>, No. 19-1918 (June 17, 2020)Panel: Judges Wallach, Bryson, and Taranto, with Judge Bryson writing the opinion.Read this case if: You have a case involving claim preclusion or the Kessler doctrine.What happens when a patentee sues a defendant, voluntarily dismisses its suits, and then turns around to sue that defendant’s customers? The Federal Circuit answered that question in PersonalWeb and held that there was no second bite at the apple.Patentee PersonalWeb first sued Amazon for patent infringement in 2011, but following claim construction, PersonalWeb stipulated to dismissal of all its claims with prejudice. The district court then entered final judgment against PersonalWeb.Skipping ahead to 2018, PersonalWeb filed “dozens of new lawsuits in various districts,” including some against Amazon’s customers that made essentially the same allegations as in its prior suit. Amazon intervened and sought a declaratory judgment precluding PersonalWeb’s new lawsuits. The district court ruled against PersonalWeb.The Federal Circuit affirmed, holding that claim preclusion barred PersonalWeb’s claims for infringement occurring before the final judgment in the 2011 action. And it further held that the Kessler doctrine, first adopted by the Supreme Court in Kessler v. Eldred, 206 U.S. 285 (1907), barred PersonalWeb’s infringement claims post-dating the final judgment.The Court explained that claim preclusion bars both claims that were brought and those that could have been brought in the earlier lawsuit. It noted that claim preclusion applies only if the accused products at issue in the earlier and later suits are “essentially the same,” which requires that the differences between the products are merely colorable or unrelated to the limitations of the claim of the patent. The Court also explained that whether the same patents are involved in both lawsuits was a consideration. But the Court emphasized that mere differences in “arguments or assertions in support of liability” between the earlier and later suits do not preclude claim preclusion. And applying those principles, the Court held PersonalWeb’s claims barred: “At most, PersonalWeb has shown that it emphasized different facts in support of a different theory of infringement in the prior case. But that is not enough to avoid claim preclusion.”Although claim preclusion generally does not apply to acts of alleged infringement occurring after the final judgment in the earlier suit, the Supreme Court’s Kessler doctrine “fills the gap” left by claim and issue preclusion. In certain circumstances, it precludes a plaintiff from engaging in repeated harassment of an “adjudged non-infringer” for continuing its business as usual after having obtained a favorable judgment against that plaintiff in a patent action. The Court noted that the Kessler doctrine creates a “limited trade right”—that is, the earlier judgment of non-infringement extends to protect any products as to which the manufacturer established a right not to be sued for infringement in the earlier suit.The Court rejected PersonalWeb’s argument that the Kessler doctrine could not apply because there was no “adjudged non-infringer” because PersonalWeb merely dismissed its case. The Court noted that, in the earlier lawsuit, PersonalWeb abandoned its claims and that the judgment in that case “stands as an adjudication that Amazon was not liable for the acts of infringement alleged by PersonalWeb.” And the Court further explained that the policy that drove the Supreme Court’s decision in Kessler would be ill-served if PersonalWeb could just dismiss its suit with prejudice and then sue a defendant’s customers.

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Last Week in the Federal Circuit (June 15-19): Patent plaintiff denied do-over

Last Week in the Federal Circuit (June 15-19): Patent plaintiff denied do-over

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It was a busy week at the Federal Circuit, as the Court issued 15 decisions, including a number of Rule 36 affirmances in cases argued during its June sitting. 

Topic Archives: Last Week in the Federal Circuit

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

By: Seth W. Lloyd and Brian R. Matsui

Last Week in the Federal Circuit (June 29-July 2): Patent Plaintiff Can’t Escape Past

By: Brian R. Matsui and Seth W. Lloyd

Last Week in the Federal Circuit (June 22-26): Light-up shoes and limiting preambles

By: Samuel Benjamin Goldstein and Seth W. Lloyd

Last Week in the Federal Circuit (June 15-19): Patent plaintiff denied do-over

By: Brian R. Matsui and Seth W. Lloyd