Administrative Agency Civil Procedure

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Congress Made a Rock So Heavy that the Courts Can’t Pick it Up

In Medtronic, Inc. v. Robert BoschHealthcare Systems, Inc., [2015-1977, 2015-1986, 2015-1987] (October 20, 2016), the Court of Appeals for the Federal Circuit reaffirmed its earlier order that the PTAB’s vacatur of its...more

Substantial Evidence Supports Determination of Reasonable Expectation of Success

In In re Efthymiopoulos, [2016-1003] (October 18, 2016) the Federal Circuit affirmed the PTAB decision that the claimed invention relating to the administration or an anti-influeza drug “by inhalation through the mouth alone”...more

PTAB Decision To Terminate IPR Proceedings After Institution Is Not Appealable

Medtronic, Inc. v. Robert Bosch Healthcare Systems, Inc., No. 2015-1977 (Fed. Cir. Oct. 20, 2016) - Applying the Supreme Court’s interpretation of the AIA’s provision making inter partes review institution decisions...more

A Question of Timing – Social Security Disability Determinations and the Administrative Record

Seyfarth Synopsis: Court excludes evidence of Social Security disability award issued after the final decision issued on plaintiff’s claim for plan disability benefits. The decision accentuates the importance of fighting to...more

AliceStorm Update for October 2016

The Federal Circuit's recent decision in McRO has been interpreted by many in the patent community as a further signal that the so-called "pendulum" is swinging back to a more favorable position for patentees. There is some...more

FERC Investigations: Uncertainty Rules as More Entities Challenge in Federal Court: Insights from Nutter’s Matt Connolly

Legal Update - Matt Connolly, a senior associate in Nutter’s Litigation Department, addressed Federal Energy Regulatory Commission (FERC) investigations in Nutter Insights. Matt discussed what triggers a FERC...more

The Supreme Court’s Decisions Not to Hear Patent Cases Leaves Federal Circuit Decisions on Key Questions Intact

The Supreme Court recently declined to hear several patent cases, thus leaving the decisions by the Federal Circuit intact. Issues that were not taken up by the Supreme Court include (1) whether performing patented methods...more

Five Key Takeaways From the D.C. Circuit’s PHH Decision

The legal challenge by PHH Corp. (PHH) to a June 4, 2015, decision by the director of the Consumer Financial Protection Bureau (Bureau) in connection with the Bureau’s enforcement proceeding against PHH has captivated the...more

D.C. Circuit Court Finds the CFPB Misinterpreted Section 8 of RESPA and Violated Due Process with Retroactive Application

The D.C. Circuit Court issued its long-awaited opinion in PHH Corporation v. Consumer Financial Protection Bureau, No. 15-1177 (D.C. Cir., filed 2015) regarding the constitutionality of the Consumer Financial Protection...more

PHH v. CFPB: Statutes of Limitation Apply To CFPB Administrative Proceedings: What You Need To Know

The D.C. Circuit Court released its highly anticipated opinion in PHH v. Consumer Financial Protection Bureau on October 11. This post addresses one important holding from that opinion. In other posts, we will be analyzing...more

Consumer Financial Protection Bureau Brought Down a Notch

Earlier lastweek the United States Court of Appeals for the DC Circuit issued its 110 page opinion concerning the Consumer Financial Protection Bureau (“CFPB”) and CFPB enforcement action in PHH Corporation Et al vs Consumer...more

Appellate Court Decision Holding CFPB Unconstitutional Promises Significant Implications

In a landmark decision issued last week, the U.S. Court of Appeals for the D.C. Circuit held that the Consumer Financial Protection Bureau’s (CFPB) structure violated the Constitution’s separation-of-powers requirements. In...more

New TTAB Rules Coming in January 2017

The USPTO has amended the rules for TTAB proceedings. A Notice of Final Rulemaking was published in the Federal Register on October 7, 2016. The effective date of the amended rules is January 14, 2017. ...more

U.S. Court of Appeals Rules Current Structure of CFPB Unconstitutional

The Consumer Financial Protection Bureau’s (CFPB) reign as an unchecked power just suffered a significant check. On Oct. 11, 2016, the U.S. Court of Appeals for the District of Columbia found that the CFPB’s structure was...more

SCOTUS Sends Auto Workers Back to Circuit Court for Overtime Regulation “Repairs”

You may not even know the technical name for workers at the local car dealership who diagnose what is wrong with your vehicle and tell you how it can be repaired. They are called auto service advisors, and whether they are...more

Supreme Court denies Cert in Cases Challenging Constitutionality of AIA Trials

On October 11, 2016, the US Supreme Court denied petitions for certiorari filed in two cases by parties challenging the constitutionality of post grant proceedings instituted under the Leahy-Smith America Invents Act....more

Recent Developments in Litigation Challenging the Medicare Appeals Delays: Is Victory Likely for Medicare Providers?

On September 19, 2016, the U.S. District Court for the District of Columbia (D.D.C.) refused to stay a highly anticipated case seeking to force the government to comply with statutory deadlines governing the Medicare appeals...more

PUT YOUR DOCS WHERE I CAN SEE THEM: Seattle Police Enjoined From Disclosing Software Secrets in Public Records Act Dispute

What happens when trade secret protections collide with laws granting public access to government records? This question took center stage in a recent case involving the Seattle Police Department (“SPD”). A federal district...more

CFPB Single-Director Structure Deemed Unconstitutional

Yesterday—in PHH Corp. v. CFPB—the U.S. Court of Appeals for the District of Columbia (the “D.C. Circuit”) held that the single-director structure of the Consumer Financial Protection Bureau (“CFPB”) is unconstitutional,...more

Employment Law Commentary, September 2016: NLRB Issues Raft of Pro-Union Decisions as Time Expires

In the last days of Summer 2016, as the political make-up of the National Labor Relations Board (NLRB) was about to change, the Board suddenly issued 20 decisions in a single week. The reason for this unusual output was not...more

N.C. Court of Appeals Affirms Local Government Board's Recusal of One of Its Own Members In Quasi-Judicial Proceeding

A quasi-judicial land use proceeding requires an impartial decisionmaker, like any courtroom proceeding. State law does its best to spell out what constitutes an "impermissible violation[] of due process"...more

Judge Oetken Holds that Amendments Made During Ex Parte Reexamination Are not Effective Until Grant of Reissue Patent

On September 26, 2016, District Judge Paul Oetken (S.D.N.Y.) denied defendant Jay Franco & Sons’ (“Franco”) motion to dismiss, granted plaintiff Infinity Headwear & Apparel’s (“Infinity”) motion for leave to amend to assert...more

Federal Circuit Relies on Robust Disclosure to Save Priority Date

On September 20, 2016, the U.S. Court of Appeals for the Federal Circuit issued an opinion affirming the summary judgement that Abbott’s U.S. Patent No. 5,344,915 (“the ’915 Patent”) was sufficiently supported by the written...more

Sovereign Immunity of State Universities: Can It Shield Them from AIA Patent Challenges?

In what appears to be a case of first impression, the PTAB is poised to rule on the question of whether state sovereign immunity prevents an IPR challenge from being maintained against a University of Florida (“UF”) patent...more

Federal Circuit Review | September 2016

Claims Directed to Monitoring and Analyzing Data Held to Be Invalid under § 101 - In Electric Power Group, LLC v. Alstom S.A., Appeal No. 2015-1778, the Federal Circuit upheld the district court’s grant of summary...more

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