The CAFC has announced that next Tuesday the Court will hold a discussion regarding “Briefing and Oral Argument in Cases Involving the Government.”
The discussion will be held in Courtroom 201 at 2 p.m. on Tuesday, April 10 at the Howard T. Markey National Courts Building. After presentations by one or more judges, there will be an opportunity for those attending to ask questions. The session is expected to last no more than 90 minutes. No advanced registration is required and of course no cost is involved.
While a significant number of patent cases involve the government as a party, I expect that the focus of the briefing will involve cases rising from the US Merit Systems Protection Board (MSPB), Court of Federal Claims (CFC), Board of Contract Appeals (BCA), and the Department of Veteran Affairs (DVA). These cases are occasionally worth a substantial amount of money (especially CFC & BCA cases). However, the majority are small-potatoes as compared to most patent appeals. Consequently, attorneys involved prepare less. I suspect that the Court will primarily focus on that issue.
A couple of side-notes: one involving pro-bono and another involving the national stature of the Court of Appeals for the Federal Circuit.
Pro Bono: Some of these low-dollar cases create a perfect opportunity for a patent attorney interested in pro-bono activities. In handling a Veteran’s appeal, you will likely provide a valuable service and, at the same time, build your experience at the CAFC.
A National Court: Unlike the regional circuit courts of appeal, the CAFC is a national court that handles cases from all-around the country. To the extent possible, meetings such as this should provide an opportunity for all interested attorneys to participate or at-least access the information provided by the Court. A simple suggestion would be to provide telephonic access or an MP3 recording of the event. Of course, this is a minor suggestion — in fact, it is wonderful that the Court is interested in prompting a dialogue with the Bar.
“Perhaps the biggest mistake made by the CAFC at the time of its formation was to pronounce that all prior jurisprudence, appellate and below, was adopted as the law of the circuit.”
What do you mean by “appellate and below”? As I understand South Corp., the CAFC merely adopted the precedents of the CCPA and the Claims Court. I’m not familiar with FARS, so I might be asking an ignorant question, but I’m confused.
I’m guessing that the meeting is more about the mechanics of briefing cases than about the CAFC’s jurisprudence. The judges will note that MSPB litigants frequently argue the merits of a case when the Board dismissed for lack of jurisdiction, and that CAVC litigants frequently argue the merits of a case without realizing that the CAFC has no jurisdiction to review the CAVC’s “application of law to fact.” Some of the judges will probably complain about the positions the government takes sometimes.
Dennis, you forgot the international trade cases, which can also involve a great deal of money, and are very difficult to brief because the statute is so complicated.
Re patent cases, the sources of virtually all of the nonsense one hears about cases against the government involving patents, including, e.g., the allowability of contract and overhead costs, and patent infringement claims, comprise the BCA and the COFC (including its predecessor the Claims Court). Perhaps the biggest mistake made by the CAFC at the time of its formation was to pronounce that all prior jurisprudence, appellate and below, was adopted as the law of the circuit. For anyone familiar with the FAR and DFARS, the problem is only too apparent given Contracting Officer and BCA treatment of intellectual property issues.
If anyone doubts what I am saying, they need go no further than reading government agency treatment of patents, copyrights and trade secrets (the latter primarily involving what is generally known as “technical data”). See, e.g., DFARS 252.227-7013.
While I agree that appeals from matters other than intellectual property claims is the likely reason for such a meeting, I firmly believe that intellectual property-related matters need examination as well.
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