Civil Procedure Administrative Agency

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Trump May Not be the Only Catalyst for Administrative Reform

In the past few months, there has been a lot of speculation regarding the future of many administrative agencies under Trump’s administration. However, two current cases pending in the D.C. Circuit have the potential to have...more

Federal Circuit Limits Scope of Covered Business Method Review

The Federal Circuit recently clarified what patents are subject to the Transitional Program for Covered Business Method Patents, or CBM review, in Secure Axcess, LLC v. PNC Bank National Association. In clarifying what...more

Federal Circuit Reverses PTAB Anticipation Holding As Improperly Finding One Would “At Once Envisage” Missing Limitation

The Federal Circuit reversed the PTAB’s final written decision holding that claims from Nidec Motor Corp.’s patent were anticipated in Nidec Motor Corp. v. Zhongshan Broad Ocean Motor Co. Ltd., Case No. 2016-1900 (Fed. Cir....more

Timing is Everything – GAO Refuses to Apply Jurisdiction Retroactively

As we previously reported here and here, between October 1 and December 14, 2016, the Government Accountability Office (GAO) lacked jurisdiction to hear most civilian agency task order protests (its jurisdiction over protest...more

Three Things You Missed Since CFPB Received En Banc Hearing in PHH Case

All eyes are on the future of the CFPB as it fights for its existence in the D.C. Circuit Court of Appeals through the matter, PHH Corp. et al. v. Consumer Financial Protection Bureau. On February 16, the D.C. Circuit agreed...more

In an IPR, the Burden of Persuasion in an Obviousness Challenge Never Shifts to Patentee

On March 3, 2017, in a final written decision in IPR2015-01838, the PTAB rejected an obviousness challenge brought by DuPont against a patent owned by Furanix Technologies B. V. directed to methods for preparing the known...more

Ninth Circuit Joins Second Circuit in Adopting Broad Definition of “Whistleblower” Under The Dodd-Frank Act

A divided panel of the U.S. Court of Appeals for the Ninth Circuit recently ruled in Somers v. Digital Realty Trust Inc. that the Dodd-Frank Act’s definition of “whistleblower” includes not only those who disclose information...more

Complainant Cannot Move For Summary Determination Against Its Own Interests

Judge Pender issued Order No. 19 in Certain Access Control Systems and Components Thereof, Inv. No. 337-TA-1016, denying Complainant The Chamberlain Group’s (“CGI”) motion for summary determination that the accused products...more

Sharply Divided Supreme Court Declines to Establish a Bright-Line Rule on Non-Lawyers Representing Corporations in Administrative...

A non-lawyer with no apparent formal connection to a corporation is the sole representative of the corporation at an administrative proceeding. When the decision comes down, it’s never properly served on the corporation. Is...more

Where Party Joined Pending IPRs, Delaware Takes Broad View of § 315 Estoppel

In Parallel Networks Licensing, LLC v. International Business Machines Corporation, No. 1:13-cv-02072, Dkt. No. 366 (D. Del. Feb. 22, 2017) (Slip Op.), the court held IBM was estopped from asserting obviousness under §103...more

Civil Discovery Act Applies to Public Records Act Proceedings, California Appellate Court Concludes

Public entities litigating California Public Records Act cases may now face the additional burden of responding to civil discovery requests. The Second District Court of Appeal recently issued its opinion in City of Los...more

Federal Circuit Review | February 2017

“Common Sense” Alone Is Not a Sufficient Motivation to Combine References - In In Re: Van Os, Appeal No. 2015-1975, the Federal Circuit held that the Patent Trial and Appeal Board’s reliance on intuition or common sense...more

Labor Department Boosts Disability Claimant Protections

The U.S. Department of Labor (USDOL) recently issued a final rule addressing disability benefit claims and appeals (see 81 FR 92316). The rule adds new procedural protections and safeguards meant to ensure disability...more

Federal Circuit Vacates PTAB Claim Construction and Obviousness Conclusion in Eli Lilly’s IPR against LA BioMed

The Federal Circuit held that a rat study in a provisional application and a conversion method in an uncited reference did not support the claimed human dosage form in Los Angeles Biomed. Research Inst. v. Eli Lilly & Co.,...more

Federal Circuit Holds That the PTAB May Consider Legal Conclusions of Obviousness by Expert Witnesses That Are Supported by...

The Federal Circuit held that the PTAB may consider legal conclusions of obviousness by experts, but the expert papers must make adequate factual findings and provide a satisfactory explanation as to determinations of...more

What Petitioners and Patent Owners Need to Know About the Scope of IPR Estoppel

Judge Sue L. Robinson of the U.S. District Court for the District of Delaware recently identified a logical fallacy in the “statutory estoppel” jurisprudence with respect to 35 U.S.C. § 315(e)(1). According to the...more

E-Communications on Private Accounts May Be Subject to Disclosure Under the California Public Records Act

The California Supreme Court has finally decided a question that has, for years, vexed courts, public officials, the media and citizen watchdogs: Are electronic communications — emails, voicemails and texts — on private...more

Patent Claims, Not Embodiments Disclosed in Specification or Litigation Strategy, Determine Eligibility for Covered Business...

A divided Federal Circuit panel recently vacated a Patent Trial and Appeal Board final decision ruling that challenged patent claims were unpatentable, by holding that the patent was not eligible for review under the...more

California Supreme Court Rules that Public Business Conducted on Personal Devices Result in Public Records

In a major development impacting all public entities subject to the California Public Records Act (Gov. Code § 6250 et seq., hereafter “CPRA”), on March 2, 2017, the California Supreme Court unanimously held that public...more

California Supreme Court Upholds Public Retirement Boards' Fiduciary Role When Adjudicating Disability Retirement Applications

In a victory for the San Bernardino County Employees’ Retirement Association (“SBCERA”) and the nineteen other county retirement systems administered under the County Employees Retirement Law of 1937 (Gov. Code, § 31450 et...more

EPIC Continues its Fight Against FAA for Drone Privacy Regulations

The Electronic Privacy Information Center (EPIC) filed its 65-page brief in its case against the Federal Aviation Administration (FAA) this week, for the FAA’s failure to address privacy risks in its final small unmanned...more

PTAB Finds Patent Eligibility in a CBM Proceeding, With a Dissent Challenging the Federal Circuit

In a final written decision, the PTAB found all challenged claims patent-eligible in Tradestation Group, Inc. v. Trading Tech. Int’l, Inc., CBM2015-00161, Paper 129 (P.TA.B. Feb. 17, 2017), an uncommon result in a CBM...more

Federal Circuit Vacates and Remands to PTAB Because of Insufficient Analysis of Obviousness in IPR

In a unanimous opinion issued on February 14, 2017, a three-judge panel of the Federal Circuit vacated the Board’s obviousness determination in Apple’s inter partes review against PersonalWeb and remanded for further...more

Supreme Court Rules Title II and Section 504 Claims Can Proceed to Court Without Exhausting IDEA’s Administrative Processes In...

Seyfarth Synopsis: The Supreme Court’s recent ruling in Fry v. Napoleon Comm. Schools limits IDEA’s exhaustion requirement to those cases which seek relief for a denial of FAPE allowing for some claims brought under Title II...more

Understanding the similarities and differences between priority claims in Canada and the U.S.

A valid priority claim can allow a patent application to benefit from the filing date of an earlier patent application so as to exclude certain prior art from consideration. The recent decision of the U.S. Federal Circuit in...more

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