When Properties Define Structure: Eligibility of Composition Claims

by Dennis Crouch

The Federal Circuit has reversed a controversial ITC decision that had invalidated composition of matter claims as abstract ideas. US Synthetic Corp. v. Int'l Trade Comm'n, No. 23-1217 (Fed. Cir. Feb. 13, 2025). This case marks an important limitation on the seemingly ever-expanding realm of patent ineligibility under Section 101. Writing for a unanimous panel, Judge Chen wrote that US Synthetic's patent claims covering polycrystalline diamond compacts (PDCs) used in drill bits are patent eligible, rejecting the ITC's determination that claims defining a composition by its material properties could be deemed abstract ideas.

As I wrote in an October 2024 post, this case raised fundamental questions about whether composition of matter claims could ever be considered abstract ideas simply because they included functional limitations or defined the composition through its properties rather than manufacturing steps. The ITC's decision had drawn criticism from PhRMA and others as an unprecedented expansion of abstract idea analysis.

At oral arguments, Judge Dyk explained that the court was taking the case seriously:

This case is breaking new territory. If we were to affirm, then this very crude tool of patentability, known as patent eligibility, start running random through composition of matter claims, just as it has through computer software and diagnostic claims.

Oral args at 15:10.


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Federal Circuit Tightens Expert Testimony Standards in Trudell, Previewing Potential Approach to EcoFactor

The Federal Circuit's recent decision in Trudell Med. Int'l Inc. v. D R Burton Healthcare, LLC, 23-1777 (Fed. Cir. Feb. 7, 2025), follows a framework for excluding expert testimony that either (1) violates discovery obligations or (2) contradicts claim construction. The appellate court rejected a jury verdict of non-infringement after finding the district court abused its discretion by admitting expert testimony that both failed to comply with Fed. R. Civ. P. 26's expert disclosure requirements and violated Federal Rule of Evidence 702's reliability standards.  The case also notably resulted in judicial reassignment after the Federal Circuit found the district judge's conduct and statements demonstrated an improper emphasis on rapid case disposition over careful consideration of the issues.


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Docket This: Working with Clients to Manage the USPTO Continuation Surcharges

by Dennis Crouch

The USPTO's new fee structure, which took effect on January 19, 2025, introduces significant changes that will reshape patent prosecution strategy in the coming years. While the update includes generally higher fees across the board, one notable development is a substantial surcharge targeting continuation applications filed long after their earliest benefit date (EBD). Under this new structure, applicants now face a $2,700 surcharge for continuations filed six years after the EBD, with the fee jumping to $4,000 for applications filed nine or more years out. Small and micro entities receive their typical discounts. This change forces patent practitioners to reconsider long-established prosecution timing strategies, particularly the common practice of sequential continuation filings. The impact will be especially significant for foreign applicants and companies maintaining large continuation portfolios, requiring some immediate attention to docketing practices and client communication schedules.


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Patent Applications After Final Rejection: A One-Year Follow-Up Study

by Dennis Crouch

I have been looking at after final practice, and potential changes going forward in how applicant's respond to this important decision point.

The chart above looks at fate of patent applications that received final rejections in January 2024 -- and shows an optimistic picture one-year out. Among the 15,813 applications tracked, nearly half (48%) have issued as patents or at least received a notice of allowance, suggesting that a final rejection, while a significant hurdle, is far from the end of the road for many applications. And, that an allowance may well be on the horizon. A substantial percentage of these cases used the now defunct After Final Consideration Pilot (AFCP 2.0) to transform the rejection into allowance.  Moving forward, applicants will likely instead need to file a Request for Continued Examination (RCE) or appeal.


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From Sculptors to Headnotes: Chiseling Out Copyright Protection for Westlaw Content

by Dennis Crouch

In a surprising decision today, Judge Stephanos Bibas ruled that ROSS Intelligence's use of Westlaw content to train its legal AI system constituted copyright infringement. Thomson Reuters Enter. Ctr. GmbH v. Ross Intel. Inc., No. 1:20-cv-613-SB (D. Del. Feb. 11, 2025).  I have been following a number of AI intellectual property challenges. Most of these have favored the makers and users of AI over the owners of the IP (typically copyright holders).

In 2023, Judge Bibas largely denied Thomson Reuters' motions for summary judgment on copyright infringement and fair use. Thomson Reuters Enter. Ctr. GmbH v. Ross Intel. Inc., 694 F. Supp. 3d 467 (D. Del. 2023). However, while preparing for the scheduled August 2024 trial, the judge reconsidered his earlier ruling.  The new opinion granted Thomson Reuters summary judgment on direct copyright infringement for 2,243 specific headnotes (detailed in a sealed appendix), including a finding of no fair use.  It looks like the only remaining factual issue for trial regarding these headnotes is whether some of their copyrights have expired.  There are also another set of headnotes that the judge concluded were not original enough to be clearly copyrightable -- those would go to a jury for consideration. [Read the Decision: 1739288038966]


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Different Burdens of Proof Prevent IPR Estoppel from Extending to Non-Challenged Claims

The Federal Circuit has significantly limited the reach of inter partes review estoppel in Kroy IP Holdings, LLC v. Groupon, Inc., No. 2023-1359 (Fed. Cir. Feb. 10, 2025). The court held that a PTAB unpatentability finding cannot create collateral estoppel (issue preclusion) against asserting other claims from the same patent in district court - even if those other claims are materially identical for invalidity purposes. The decision, authored by Judge Reyna, emphasizes the critical distinction between IPR's preponderance standard and district court litigation's clear and convincing evidence requirement.  This case builds upon ParkerVision, Inc. v. Qualcomm Inc., 116 F.4th 1345 (Fed. Cir. 2024).

The case arose after Kroy sued Groupon for infringing U.S. Patent 6,061,660, which relates to incentive programs over computer networks. After Groupon successfully challenged some claims in IPR proceedings, Kroy amended its complaint to assert different claims that had not been challenged in the IPRs. The district court dismissed the case, finding that collateral estoppel barred assertion of the new claims since they were not materially different from the claims found unpatentable by the PTAB.


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Million-Dollar Mysteries: Recent Complex Patent Cases Lost to Rule 36

by Dennis Crouch

In a recent batch of Rule 36 summary affirmances, the Federal Circuit disposed of several complex patent cases without written opinions. This continues to raise serious questions in my mind about the court’s ongoing reliance on this practice. While some judges defend Rule 36 affirmances as appropriate for easy to see “losers,” an examination of these recent cases reveals sophisticated legal issues involving millions of dollars in dispute. For instance, in Lu v. Hyper Bicycles, the court declined to address important questions the quantum of evidence needed to survive summary judgment in design patent cases, while Wilson v. Corning presented novel issues regarding jury trial rights for hybrid legal-equitable claims under the Seventh Amendment.

I have previously argued that 35 U.S.C. § 144’s “shall issue” language requires the court to issue an opinion in appeals from USPTO proceedings.  But, the court has continued the practice.  In In re Google, the court summarily affirmed the PTAB’s rejection of claims related a system for hot-news detection. This is a case where Google retaining top appellate counsel to challenge the Board’s obviousness analysis. Similarly, in Maxell v. Amperex, the court passed on an opportunity to provide needed on analogous art determinations, a key confusing aspect of obviousness decisions.

While I don’t think these cases are generally clear losers, I have found that they are more likely to involve detailed factual records, particularly in IPR appeals where technical minutiae abound.  So, I can understand why the court may be reticent to delve into the difficult cases — except that is the role of the judges.  And, the court should not permit the PTAB to avoid review via complexity. The Federal Circuit’s handling of Shell v. Scientific Design exemplifies this concern – rather than grappling with important questions about the Board’s ability to fill gaps in petitioner’s obviousness arguments, the court opted for summary affirmance without any opinion. This approach not only deprives the patent community of valuable precedent but also raises questions about whether the court is fully engaging with the challenging factual determinations underlying many patent appeals. For me, the very process of writing often reveals analytical gaps or inconsistencies that were not apparent during my initial consideration of an issue.  Judges need to explicitly connect their reasoning from premise to conclusion, and that can be evaded via summary affirmances. (more…)

USPTO After Final Practice: More Rejections, Fewer Appeals, and the Future of RCEs

by Dennis Crouch

Over the past decade, the rate at which applicants file a Notice of Appeal (NOA) following a Final Office Action has steadily declined. This chart presents a quarterly snapshot of appeal activity by dividing the count of NOAs filed by the number of final rejections issued in that same period. Unlike a cohort analysis that tracks the fate of individual applications, this approach provides a broad view of how frequently applicants are choosing to challenge examiners' decisions via the Patent Trial and Appeal Board (PTAB).  To control for distortions, this dataset is limited to published applications, ensuring that the numbers are not skewed by the fact that non-published applications are generally only accessible when a patent issues.  During this time, the USPTO has issued lots more final office actions 50% more at the end of calendar year 2024 as compared with 2021-2022.  But, although rejections have risen, NOA filings have not.


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Federal Circuit Upholds ITC Import Ban: Key Rulings on Storage Defense and Domestic Industry Requirements

by Dennis Crouch

The Federal Circuit has affirmed a US International Trade Commission (ITC) determination that Wuhan Healthgen violated Section 337 through importation of clinical-grade recombinant human serum albumin (rHSA) products that infringe Ventria Bioscience’s U.S. Patent No. 10,618,951. Wuhan Healthgen Biotechnology Corp. v. International Trade Commission, No. 2023-1389 (Fed. Cir. Feb. 7, 2025).

The patentee in the case – Ventria / ExpressTec – is a small biotech company  operating out of Junction City Kansas.  Their asserted patent is directed to a cell culture media containing rHSA produced via plants genetically modified to include the human genes. The albumin is basically a protein food for growing human cells in artificial laboratory environments.  Traditionally, the albumin came from animal sources, such as blood serum, but the plant process has some easy to identify benefits.  A key feature of the patented invention is monomer purity. Ideally, the albumin will be in monomer form as opposed to forming dimers or other aggregated groups, and Ventria’s patent particularly requires “less than 2% aggregated albumin.”

Wuhan Healthgen has been competing in the market by supplying its own version of the product exported from its Chinese production facilities and Ventria took action – in the ITC seeking a trade exclusion order of the infringing product.  The ITC largely sided with the patentee.  In this post, I focus on the domestic industry requirement and particularly how it applies to small innovative US companies. (more…)

Vaishali Udupa Resigns as Commissioner of Patents

by Dennis Crouch

USPTO Commissioner of Patents Vaishali Udupa has resigned after just over two years in office. Under 35 U.S.C 2, the Commissioner is appointed by Secretary of Commerce for a term of 5-years.  For much of US history, the Commissioner of Patents was the top dog at the patent office. However, in the 1990s Congress created an additional layer of the Director and Deputy Director - both having undersecretary roles within Commerce.  The Commissioner can be removed prior to the 5-year mark by the Secretary of Commerce, but the statute suggests that there must be cause: "for misconduct or nonsatisfactory performance under the performance agreement."  In this case, I suspect Udupa received substantial encouragement to leave because of her support and close ties to the prior director Kathi Vidal as well as support for a variety of diversity and equity initiatives. In addition, the backlog of pending patents has risen significantly over the past two years and is a key stated focus of the new Secretary of Commerce. (Howard Lutnick is not yet the Secretary, but will be very soon).

Her resignation comes amidst a strong push by President Trump to encourage all federal workers to resign -- with each worker receiving an email encouraging them to leave their "lower productivity jobs" working for the government and move into the private sector. Udupa met the deadline for the offered "buyout" package of no-responsibility pay through September 2025, although it is unclear whether she is seeking payments under that package.


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Preemption Lost: The Federal Circuit’s Abandonment of Supreme Court Patent Eligibility Doctrine

by Dennis Crouch

One of the most perplexing aspects of patent eligibility doctrine involves the role of preemption - the concern that patents might lock up basic tools of scientific and technological work in ways that limit individual liberty and or that may unduly block fundamental progress.  The Supreme Court has repeatedly emphasized that these  preemption concerns "undergird" and "drive" the judicially created exceptions to patent eligibility under 35 U.S.C. § 101. Yet in practice, the Federal Circuit has consistently regarded evidence of preemption (or the lack thereof) as basically irrelevant when determining whether or not a particular claimed invention is patent-eligible.  Even the complete absence of preemption "does not demonstrate patent eligibility." Roche Molecular Systems, Inc. v. Cepheid, 905 F.3d 1363 (Fed. Cir. 2018).  There is a clear disconnect here between the doctrine's theoretical framework as designed by the Supreme Court and the Federal Circuit's practical application.

This disconnect between theory and practice creates two significant concerns. Most directly, the Federal Circuit's dismissal of preemption appears to be a failure to faithfully apply the Supreme Court's precedent. At the same time though, the disconnect also raises a more fundamental question: if preemption analysis can be so readily discarded in practice, perhaps the Court's theoretical focus on preemption fails to capture the true policy concerns driving patent eligibility doctrine.

The recently filed petition in Impact Engine, Inc. v. Google LLC asks the Supreme Court to resolve this tension -- particularly suggesting that the court restore preemption analysis to its central role in patent eligibility determinations. The case also raises what I see as a particularly compelling argument involving means-plus-function claims, where Congress has already struck a balance between functional claiming and specific structural limitations through 35 U.S.C. § 112(f).  ImpactEnginePetitionforCertiorari.

Means-Plus-Function Claims in Patent Eligibility and Infringement Analyses


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Federal Circuit Affirms PTAB’s Obviousness Decision Despite Claim Construction Error

by Dennis Crouch

The Federal Circuit has affirmed the PTAB finding of obviousness in an inter partes review (IPR) challenge to an integrated circuit manufacturing patent, even while disagreeing with the Board's claim construction. HD Silicon Solutions LLC v. Microchip Technology Inc., No. 2023-1397 (Fed. Cir. Feb. 6, 2025). The decision is fairly narrow - offering a situation where the lower tribunal's errors can be harmless when alternative grounds support the ultimate conclusion.


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Most Patent Examiners Protected from USPTO Return-to-Office Mandate (for now) Through Union Agreement

by Dennis Crouch

USPTO Commissioner for Patents Vaishali Udupa released guidance yesterday regarding the agency’s implementation of President Trump’s return-to-in-person work executive order.  The guidance explains that – in general – all remote workers will be ordered to return to office in coming days. But, the memo has a major exception it does not apply to employees whose telework arrangements are protected by collective bargaining agreements.

This exception is significant because the vast majority of USPTO’s patent examiners – both primary examiners and assistant examiners – are represented by the Patent Office Professional Association (POPA) under a collective bargaining agreement that expressly protects telework rights. In practice, this means the return-to-office mandate primarily affects supervisory patent examiners (SPEs), Patent Trial and Appeal Board judges, and other management positions not covered by the union agreement.

I should also be clear that the email does not state that examiners will continue to work remotely – only that employees protected by a relevant CBA “are not covered by this message.”  The White House has stated that these CBAs in general are not enforceable. So, the examiners may simply be waiting for the other shoe to drop.

(more…)

Blurring the Line Between Law and Fact in Patent Eligibility

by Dennis Crouch

The well-worn advice to trial lawyers, famously captured by Carl Sandburg, has long been: "If the law is against you, pound on the facts. If the facts are against you, pound on the law. If both are against you, pound on the table."

This traditional dichotomy between law and fact reflects a fundamental principle of American jurisprudence - that certain questions are reserved for judges (law) while others are reserved for juries (fact).  And, even in cases where the judge serves both roles, the law provides for a strict separation of role. See FRCP 52(a).  But patent law doctrine often defies this clean separation. Take patent eligibility as an example: while courts characterize the atextual eligibility doctrine as ultimately a question of law, the analysis may require underlying factual determinations about what was conventional in the relevant field at the time of invention. And, even the "legal" aspects of eligibility analysis - like whether claims are "directed to" an abstract idea - require their own form of proof and evidence. The difference is that because courts have labeled these as questions of law, they bypass traditional evidentiary standards. This creates a peculiar framework where some elements of proof are subject to strict evidentiary requirements while closely related elements are left to judicial reasoning without similar constraints.  The problem has been further complicated in the eligibility area because the Federal Circuit has not generally required district courts to carefully separate their analysis between law and fact -- even at the pretrial stage where judicial factual conclusions are usually avoided.  These issues are raised to some extent in BBiTV's newly filed petition for certiorari, which challenges how courts handle disputed factual issues when deciding patent eligibility on summary judgment.

For me, BBiTV's argument raises deeper questions about how courts have arrived at this procedural framework for handling patent eligibility determinations. In my view, several historical developments in patent law have contributed to the current state of affairs, where judges increasingly make what appear to be factual determinations under the guise of eligibility legal analysis. These developments, combined with institutional pressures and uncertainties about the role of the Seventh Amendment in patent eligibility determinations, have somewhat blurred the distinction between law and fact. After reviewing the BBiTV case in particular, I move on to examine these contributing factors and their implications for how courts handle disputed facts in patent eligibility cases.


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Attorney Fees in Copyright Cases, Part II

by Dennis Crouch

WC Realty recently filed a petition for certiorari that builds upon and expands the issues presented in the Property Matters case that I wrote about recently.  Both cases focus on whether a voluntary dismissal of a copyright infringement action under Rule 41(a)(1) bars "prevailing party" status under §505 of the Copyright Act.  Under Section 505, "the court may also award a reasonable attorney’s fee to the prevailing party."   This is almost identical to the Patent Act's fee shifting provision except that patent law limits discretion to "exceptional cases."  35 U.S.C. 285.

The petition presents two distinct but related questions about how voluntary dismissals should be handled under §505 of the Copyright Act. The first question addresses the fundamental threshold issue: whether a defendant can even qualify as a "prevailing party" after a plaintiff voluntarily dismisses under Rule 41(a)(1). The Eleventh Circuit has created a categorical bar, holding that defendants cannot be prevailing parties without court-ordered dismissal, even when the dismissal is "with prejudice" and precludes refiling. The second question examines how voluntary dismissals should be weighed when courts exercise their discretion to award fees under §505.

Voluntary Dismissals and Attorney Fees

The case arose when Affordable Aerial Photography (AAP) sued WC Realty for copyright infringement over real estate photographs. After WC Realty incurred substantial defense costs, AAP voluntarily dismissed its claims "with prejudice" under Rule 41(a)(1). The district court denied WC Realty's request for attorney's fees, and the Eleventh Circuit affirmed, holding that WC Realty could not be a "prevailing party" because there was no "judicial action rejecting or rebuffing" AAP's claims.


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USPTO’s Rapid Policy Shifts Threaten Patent System Stability

by Dennis Crouch

The U.S. Patent and Trademark Office faces unprecedented challenges as recent executive directives force dramatic changes to its operations. I think that folks across the spectrum from right to left would agree that current changemaking at the White House is following a brutalist approach that treats all federal employees and agencies as interchangeable parts rather than recognizing their unique roles, specialized expertise, and operational requirements. Rather, it is following the old adage that to make an omelet you must break  a few eggs.  The White House appears willing to sacrifice individual careers, institutional knowledge, and what Reagan Appointee Sandra Day O'Connor termed a "carefully crafted" systems, in pursuit of its broader agendas and the hope of later instilling federal workers who are more favorable to conservative control.  So far, USPTO Acting Director Coke Morgan Stewart has been silent except to indicate that she is fully implementing White House orders and requests.

A joint letter from the Intellectual Property Owners Association (IPO) and American Intellectual Property Law Association (AIPLA) to Congress highlights that the patent application backlog is at a high point. But, rather than addressing this critical backlog, recent policy shifts threaten to exacerbate delays and trigger a major exodus of experienced patent professionals from the system that is fully user-fee funded. FINAL-IPO-AIPLA-Joint-Letter-to-Senate-re-Hiring-Freeze-and-Return-to-Work-2.3.25.  The letter asks that the USPTO be "exempted from executive actions that could further hinder its ability to meet its mission. . . .  Specifically, the Hiring Freeze, the Return to In-Person Work mandate, and the Deferred Resignation Email to Federal Employees could severely restrict the agency’s ability to address its growing workload."  The letter avoids discussing other hot button issues, such as the USPTO's full compliance with White House executive order titled "Defending Women from Gender Ideology Extremism and Restoring Biological Truth."

Of particular concern today is the new mandate requiring


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The Upcoming Trade Wars: Intellectual Property Rights at Center Stage

by Dennis Crouch

Recent Senate testimony from Commerce Secretary nominee Howard Lutnick provides a window into how intellectual property rights will likely become a central battlefield in escalating international trade tensions. During his confirmation hearing before the Senate Commerce Committee, Lutnick articulated an aggressive stance on protecting American intellectual property, particularly focusing on stated abuses by China.

I have cued his testimony in the video below to begin with his a retelling of key aspects of his life story that is truly a testament to extraordinary resilience.


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Federal Circuit Outcomes from the Past Four Years

by Dennis Crouch

[Update – I should have noted that these are limited to appeals from the USPTO – primarily IPR decisions focusing on the issue of obviousness]

The pie chart shown here depicts the distribution of Federal Circuit case outputs from 2000 to 2024 across three categories. The plurality of cases, 44%, resulted in a Non-Precedential Opinion, indicating a substantial volume of decisions with limited precedential impact. Following this, 38% of outcomes are categorized as “No Opinion (R.36).”  These are cases where the court issued a summary affirmance of a lower tribunal holding without any written explanation.  I want to note for a moment here that other federal appellate courts also have an approach known as “summary affirmance, but those courts always provide at least a brief explanation of the ruling and its justification. The Federal Circuit provides no opinion, just the judgment.

The final segment, 18% of dispositions, represent cases with Precedential Opinion.  This represents the smallest category and highlighting the court’s selection of cases deemed to warrant formal published opinions with binding effect on subsequent decisions.

 

 

Follow-up on Peterson v. Minerva: LIFT OUR VOICES Amicus Brief

by Dennis Crouch

In early January 2025, I wrote about Peterson v. Minerva Surgical, No. 24-712, a case involving a former Minerva sales director (Dan Peterson) seeking Supreme Court review of an arbitration award that went against his whistleblower claims. See Dennis Crouch, Patents as Product Liability Admissions: A Cert Petition Highlights Novel Use of Patent Filings in Whistleblower Case, Patently-O (Jan. 4, 2025).  As I explained in that post, Peterson's argument for review relies on Minerva's own patent filings as evidence that the company knew about safety issues with its endometrial ablation device —and that it fraudulently provided contradictory testimony during the arbitration proceedings.

The case has now drawn additional attention through an amicus brief filed by Lift Our Voices (LOV), filed by my University of Missouri Law School colleague Professor Michael Tripp.  LOV, led by former Fox News anchor Gretchen Carlson, advocates for workplace safety and equity -- and has particularly focused on how forced arbitration and non-disclosure agreements lead to a continuation of sexual harassment in the workforce. The brief presents the case as emblematic of broader concerns about the use of forced arbitration and non-disclosure agreements (NDAs) to shield corporate misconduct from public scrutiny.

Federal Appellate Judge: "I have No Power": LOV's brief emphasizes how the Tenth Circuit's extreme deference to arbitrators has effectively nullified any meaningful judicial review. The brief directly quotes the circuit court's striking admissions of powerlessness, including statements that federal courts "do not have discretion," "do not have power," and "cannot set aside an arbitration award based on legal error."  This language, LOV argues, represents a concerning abdication of Article III judicial authority that Congress never intended when enacting the Federal Arbitration Act (FAA) -- concluding that the Arbitrator was faced with a factual dispute about safety and decided that the device had not yet been proven unsafe.

The case provides stark language about the extremely limited scope of judicial review over arbitration awards. Specifically, the Tenth Circuit emphasizes in Peterson v. Minerva Surgical, Inc., No. 24-3003 (10th Cir. Aug. 15, 2024): "the standard of review of arbitral awards 'is among the narrowest known to the law.'" The court goes on to state directly that "federal courts do not have power to review an arbitrator's factual findings." And when it comes to legal errors, the court explains that it "cannot set aside an arbitration award based on legal error unless it amounts to 'a manifest disregard of the law, defined as willful inattentiveness to the governing law.'"


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