Tag Archives: judicial review

Apple v. Vidal: APA Compliance in IPR Discretionary Denial Rules

August 20, 2024PatentAdministrative Law, AIA Trials, Amicus Briefs, APA, discretionary denial, Federal Circuit, IPR, judicial review, NHK-Fintiv Rule, Notice-and-Comment Rulemaking, paid, patent litigation, USPTODennis Crouch

by Dennis Crouch

I have written several times about the Chestek case regarding notice-and-comment requirements under the APA. A second notice-and-comment case is also pending before the Federal Circuit, potentially having a much greater impact on patent practice. The case, Apple v. Vidal, focuses on IPR discretionary denials, which the USPTO implemented as policy without any formal rulemaking notice-and-comment.

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EcoFactor Responds: Defending the Federal Circuit’s Damages Ruling Allowing Qualitative Apportionment

August 19, 2024PatentAmicus Briefs, apportionment, comparable licenses, Damages, Daubert, en banc, Expert Testimony, Federal Circuit, judicial review, paid, patent litigation, Patent Valuation, Reasonable RoyaltyDennis Crouch

by Dennis Crouch

This is my third post focusing on Google's en banc challenge to 'loose' damages testimony. The patentee, EcoFactor, has now filed a responsive brief in the ongoing smart thermostat patent dispute which resulted in a $20 million jury verdict against Google. A 2-1 Federal Circuit panel affirmed the verdict and, as you might expect, EcoFactor's en banc response defends the decision, arguing that the case presents a straightforward application of established precedent. At core, EcoFactor argues that Google and amici are seeking to impose new, rigid rules that go beyond existing Federal Circuit precedent. Although some say that hindsight is 20/20, anyone who has undergone a hypothetical damages analysis will understand that the process always involves some degree of guestimation and uncertainty -- adding additional precision and calculation is unlikely to provide any true certainty or predictability.

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No Concrete Plans, No Standing: Federal Circuit’s Latest on IPR Appeals

August 18, 2024PatentAIA Trials, Article III, Case-or-Controversy, Constitutional Law, Dismissal with Prejudice, Federal Circuit, infringement, IPR, judicial review, Kessler Doctrine, obviousness, paid, patent litigation, standingDennis Crouch

by Dennis Crouch

The recent Federal Circuit decision in Platinum Optics v. Viavi Solutions focuses attention once again on the case-and-controversy requirement derived from Article III of the U.S. Constitution, which extends federal judicial power to "Cases" and "Controversies."

The seemingly simple phrase has been the subject of extensive judicial jockeying in the development of the doctrine we know as "standing."

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A few initial thoughts on Loper Bright and the end of Chevron Deference

July 2, 2024PatentAdministrative Law, AIA, APA, Chevron, deference, Federal Circuit, ITC, judicial review, obviousness, paid, patent law, patent term adjustment, PTAB, Sonos v Google, Statutory Interpretation, Supreme Court, USPTODennis Crouch

by Dennis Crouch

This is just a first look at how overturning Chevron may impact patent practice.

In the past, both the USPTO and patent attorneys have largely ignored the larger scope of administrative law, but in recent years USPTO operations have been under tighter control from the White House, and courts have increasingly asked whether the agency is following the rules. Administrative patent law was truly launched with the American Invents Act of 2011 and the resulting administrative patent trials by the PTAB -- resulting in hundreds of appeals arguing that the USPTO's procedural approach is an abuse of administrative power. Importantly, the Supreme Court in Cuozzo Speed Techs. v. Com. for Intell. Prop., 579 U.S. 261 (2016) provided the patent office with Chevron deference for its determinations regarding AIA trials, including issues such as its approach to claim construction. But Chevron has now been overruled, and many are wanting the Federal Circuit to revisit the USPTO approach.

Although I expect that the outcome

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Veterans’ Benefits at the Supreme Court: The Battle Over Benefit-of-the-Doubt

June 10, 2024Patentbenefit-of-the-doubt, judicial review, paid, Statutory Interpretation, Supreme Court, veterans benefitsDennis Crouch

by Dennis Crouch

In April 2024, the Supreme Court granted certiorari in the consolidated cases of Bufkin v. McDonough and Thornton v. McDonough, two veterans’ benefits cases on appeal from the Court of Appeals for the Federal Circuit. The cases involve the "benefit-of-the-doubt" rule, a longstanding principle that is codified in veterans law that requires the VA to resolve close or unclear issues in a veteran's favor when adjudicating benefits claims. [SCT Docket]

Both Bufkin and Thornton are veterans who were denied disability benefits by the VA.

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