CAFC: IPR Cancellation Is not a 5th Amendment Taking

Patent

CHRISTY, INC. v. US (Fed. Cir. 2020)

I’ll add more on this case. The holding is big, but expected. Cert petition to SCOTUS coming this fall:

Christy, Inc. asserts that the United States owes it just compensation for the Patent Trial and Appeal Board’s cancellation of claims 1–18 of Christy’s patent, U.S. Patent No. 7,082,640, in two inter partes reviews. Because the cancellation of a patent in an inter partes review does not grant the patentee any compensable claim against the United States, we affirm the Court of Federal Claims’s dismissal of the case for failure to state a claim.

Slip Op.

 

Hide comments

7 thoughts on “CAFC: IPR Cancellation Is not a 5th Amendment Taking”

  1. 2

    And yet again, Dennis doesn’t bother to say who’s on the panel.

    Come on Dennis, the members of the panel make all the difference at the CAFC. This one was Lourie, Reyna and Hughes, making the result a foregone conclusion.

    1. 2.1

      Honestly though, how could any panel reach a different conclusion? For one thing, if it constitutes a “taking” for a government entity to conclude that a patent claim was wrongly granted and declare that claim invalid, then the CAFC is liable itself for a mountain of takings compensation. For another, every possible three-judge combination on the CAFC is bound by the holding in Patlex Corp. v. Mossinghoff, 758 F.2d 594, 603 (Fed. Cir. 1985)—authored by Judge Newman, no less—that administrative post-grant cancellation is not a compensable taking.

      1. 2.1.1

        “Honestly though, how could any panel reach a different conclusion?”

        Gee, Greg probably does not understand the FACT that the CAFC has created a Gordian Knot of conflicting case law (on 35 USC 101), so how could any CAFC have judgments made in any type of error?

          1. 2.1.1.1.1

            My point is not about ‘which judges in this case.’

            My point is that Greg’s broad edict is preposterous on its face given the immediate history of the CAFC.

  2. 1

    . . . and yet another rabbit the CAFC pulled out of its bag o’ unconstitutional tricks.

    And just in time, too — America’s Got Talent is holding auditions in a couple of weeks.

Comments are closed.