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Administrative Agency Civil Procedure Constitutional Law

Read need-to-know updates, commentary, and analysis on Administrative Agency issues written by leading professionals.

Lawsuit Claiming Gender Bias in Title IX Investigation Allowed to Go Forward

• A federal court in Ohio has held that published writings of a university Title IX administrator provide sufficient evidence of bias to permit a civil suit by a penalized student to go forward. • Denial of equitable...more

Will This Term of Wisconsin’s Supreme Court Be the Last for Agency Deference in Wisconsin?

by Foley & Lardner LLP on

Justice Neil Gorsuch’s confirmation process earlier this year brought attention to the issue of agency deference, given a concurring opinion that he had written in Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149 (10th Cir....more

5th Circuit Hints SEC ALJs Unconstitutional

by Burr & Forman on

In an Opinion highlighting the Circuit split over the constitutionality of SEC administrative law judges (“ALJs”), the Fifth Circuit recently stayed an FDIC civil-penalty and bar order against a Bank director, pending...more

Federal Circuit’s Amicus Brief in Oil States

Although the Federal Circuit already passed on the constitutionality of Inter Partes Reviews, considering some of its recent decisions, it appears that the Federal Circuit questions the competence of the PTAB to conduct...more

Preemption is “Part and Parcel” of the §101; But Lack of Preemption Does Not Necessarily Establish Patentability

In Return Mail, Inc. v. United States Postal Service, [2016-1502] (August 28, 2017), the Federal Circuit affirmed the PTAB’s decision that the US Postal Service had standing to challenge Return Mails patents in an CBMR, and...more

It Pays to be Persistent if PTAB Rulings Violate Due Process Ultratec v. CaptionCall and Matal (Fed. Cir. 2017)

by Brinks Gilson & Lione on

In Ultratec, the Federal Circuit cited several problems with the Board’s permissive rules of trial proceedings and held the Board abused its discretion in its consideration of supplementary evidence. The Board’s regulations...more

Federal Circuit Rules in Favor of Public Interest Group Standing at PTAB

by Jones Day on

In Personal Audio, LLC. v. Electronic Frontier Foundation, No. 2016-1123 (Fed. Cir. Aug. 7, 2017), the Federal Circuit reviewed a Patent Trial and Appeal Board (“PTAB”) decision invalidating claims of U.S. Patent No....more

Standing to Appeal PTAB Decision to Federal Circuit is Measured for the Appellant, Not the Appellee

by Knobbe Martens on

The Federal Circuit determined that Article III standing was not necessary for an appellee to participate in a judicial appeal of an IPR final written decision because the appellant had Article III standing in Personal Audio,...more

Fresh From the Bench: Precedential Patent Cases From the Federal Circuit

This was a busy week for precedential cases at the Circuit. In AIA v. Avid, the Circuit rules that there is no right to a jury trial as to requests for attorney fees under § 285. In Romag v. Fossil, a majority rules that the...more

Changes to PTAB Practice Proposed by STRONGER Patents Act of 2017

by Knobbe Martens on

The STRONGER (Support Technology & Research for Our Nation’s Growth and Economic Resilience) Patents Act of 2017 was recently introduced in the Senate by a bipartisan group led by Senator Chris Coons (D-Del.) and co-sponsored...more

Contingency-Fee Unclaimed Property Auditor Arrangement Subject to Due Process Review

A facial challenge to Delaware’s use of contingency-fee unclaimed property auditors has been given new life by a federal appellate court, which held that the arrangement is subject to due process review, reversing the lower...more

Fairness in Evaluation: Federal Circuit Remand to Board For Failure to Fully Consider Petitioner’s Arguments Against Motion to...

by Foley & Lardner LLP on

In Shinn Fu Company of America, Inc. et al. v. The Tire Hanger Corp., slip op. 2016-2250 (Fed. Cir. July 3, 1997) (non-precedential), the Federal Circuit reversed a Board’s decision granting a motion to amend claims...more

Federal Circuit Finds Regeneron Transgenic Mouse Patent Invalid For Inequitable Conduct With Intent Inferred From Litigation...

by Foley & Lardner LLP on

In a 38 page decision with a 19 page dissent by Judge Newman, the Federal Circuit determined that Regeneron’s transgenic mouse patent is unenforceable due to inequitable conduct. The decision was rendered in Regeneron...more

Eighth Circuit Strikes Down STB Rules Defining "On-Time" Passenger Performance

by Holland & Knight LLP on

In Union Pacific Railroad Company v. Surface Transportation Board, No. 16-3307, the U.S. Court of Appeals for the Eighth Circuit has held that the Surface Transportation Board (STB) exceeded its authority when it promulgated...more

Federal Circuit Denies Motion to Stay Pending Supreme Court Decision in Oil States

by Jones Day on

On June 12, 2017, the U.S. Supreme Court granted certiorari in Oil States Energy Servs., LLC v. Greene’s Energy Group, LLC, to decide whether inter partes review (IPR) violates the Constitution by extinguishing patent rights...more

En banc D.C. Circuit split leaves intact the panel ruling that SEC ALJs are not inferior officers

by Ballard Spahr LLP on

On June 26, 2017, the en banc D.C. Circuit was equally divided on the question of whether SEC administrative law judges (“ALJs”) are “inferior officers.” This leaves intact the D.C. Circuit panel decision in Lucia which held...more

In Split 5-to-5 Decision, En Banc D.C. Circuit Denies Petition for Review in Lucia v. SEC

On June 26, 2017, the D.C. Circuit, en banc, split 5-to-5 on whether to grant a petition seeking to overturn an August 2016 ruling by a three-judge panel of the D.C. Circuit that determined that SEC administrative law judges...more

Impairment Rating Evaluations Declared Unconstitutional

Over 20 years after Section 306(a.2) of the Pennsylvania Workers’ Compensation Act was enacted, employers will no longer be able to limit partial disability benefits to 500 weeks based on an Impairment Rating Evaluation...more

Supreme Court to Decide the Constitutionality of Inter Partes Review

In a move that could drastically change the patent law landscape, the United States Supreme Court recently granted certiorari in Oil States Energy Services LLC v. Greene’s Energy Group LLC, No. 16-712, to answer the question...more

Supreme Court to Consider Constitutionality of AIA Inter Partes Review Proceedings

by Snell & Wilmer on

The Supreme Court has granted a writ of certiorari challenging the constitutionality of inter partes review proceedings conducted by the United States Patent and Trademark Office under the America Invents Act. The Court’s...more

Supreme Court Will Decide Whether IPRs Are Unconstitutional

by Knobbe Martens on

The Supreme Court granted a petition for writ of certiorari to address whether inter partes review – an adversarial process used by the Patent Office to determine the validity of existing patents – is unconstitutional in Oil...more

Is The Handwriting On The Wall For IPR's? Supreme Court To Decide…

by Brinks Gilson & Lione on

On June 12, 2017, the U.S. Supreme Court announced a grant of cert for Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, on appeal from the Federal Circuit....more

Oil States v. Lee Brings Mother of all IPR Cases to Supreme Court

On June 12, the Supreme Court took certiorari on probably the biggest IPR case possible: a case challenging the constitutionality of IPRs on separation-of-powers and seventh amendment grounds. This comes just a few weeks...more

Supreme Court to Decide Constitutionality of AIA Reviews

It’s no secret that patentees have been generally unhappy with both the process and outcomes of AIA reviews. Now the Supreme Court has agreed to decide whether the entire AIA review system will be eliminated on...more

Are Inter-Partes-Review Proceedings Constitutional? Supreme Court Will Weigh In

by Jones Day on

Today, the Supreme Court agreed to hear a challenge to the constitutionality of inter partes review...more

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