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Read Civil Procedure updates, alerts, news, and legal analysis from leading lawyers and law firms:

Another Federal Appeals Court Rejects Workplace Recording Bans

by Fisher Phillips on

The 5th Circuit Court of Appeals recently became the second federal appeals court this year to hold that an employer’s rule prohibiting recording in the workplace violates the National Labor Relations Act (NLRA). In a July 25...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

Federal Circuit Says PTO Submissions can Waive Privilege to Future Communications

On July 20, 2017, the United States Court of Appeals for the Federal Circuit in In re OptumInsight denied OptumInsight’s petition for writ of mandamus on privilege waiver. The court held that the District Court for the...more

The PTAB Reaches Same Determination After Remand Despite Having Construction and Analysis Set Aside

by Knobbe Martens on

On July 28, 2017, the PTAB issued a final written decision holding all claims unpatentable in an IPR after the Fed. Cir. vacated and remanded the PTAB’s previous final written decision. On remand, the PTAB reached the same...more

Supreme Court of Canada clarifies when regulatory bodies may be relied on to fulfill the Crown’s duty to consult Aboriginal...

by Dentons on

As the Supreme Court of Canada (SCC) explained in Haida and Carrier Sekani, it is open to legislatures to empower regulatory bodies to play a role in fulfilling the Crown’s duty to consult Aboriginal peoples. Carrier Sekani...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

District Court Finds Estoppel for Non-Petitioned Grounds but not for Dicta

by Jones Day on

Since the Federal Circuit’s decision in Shaw Indus. Grp., Inc. Automated Creel Sys., Inc., 817 F.3d 1293 (Fed. Cir. 2016), district courts have been finding no estoppel in court proceedings for invalidity positions that were...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

Commission Overturns Summary Determination in Optical Fibers Investigation

by Jones Day on

In an earlier post, we summarized ALJ McNamara’s recent Summary Determination in Certain UV Curable Coatings For Optical Fibers, Coated Optical Fibers, And Products Containing Same, Inv. No. 337-TA-1031, Order No. 33 (July 6,...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

NLRB’s Acted More Like “Advocate Than Adjudicator” In Issuing Decision, DC Court of Appeals Concludes

When bargaining over an agreement, it is common to hear union representatives ask “why do we need such elaborate language in an agreement? We are always reasonable.” To which, the company usually responds, “We think you’re...more

Minnesota Patent Litigation Wrap-Up – July 2017

by Fish & Richardson on

This post continues our monthly summary of patent litigation in the District of Minnesota, including short summaries of substantive orders issued in pending cases. In July 2017, there were three notable decisions for...more

Assignor Estoppel is Not a Defense in Inter Partes Reviews

by Brinks Gilson & Lione on

The Patent Trial and Appeal Board (“PTAB”) recently designated as “precedential” a PTAB opinion issued in 2013 finding that assignor estoppel is not a defense for patent owners in inter partes review proceedings (“IPR”). ...more

PTAB Designates Portion Of Assignor Estoppel Opinion As Precedential

by Jones Day on

In October 2016, we posted about a Federal Circuit decision addressing whether assignor estoppel bars a party from filing an inter partes review petition. In Athena Automation Ltd. v. Husky Injection Molding Systems Ltd., the...more

Board Was Mixed Up Over Blender Patent

In Homeland Housewares, LLC v. Whirlpool Corp., [2016-1511] (August 4, 2017), the Federal Circuit reversed the PTAB’s determination that Whirlpool’s U.S. Patent No. 7,581,688 relating to a household blender was not...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

Indefiniteness Dooms Patent Claims on Summary Determination

by Jones Day on

Dispositive summary judgment in district court patent cases is somewhat common, but similar early dispositions of Section 337 investigations in the ITC are rare in comparison. One such outcome happened recently in Certain UV...more

Food & Beverage Litigation Update | August 2017

Sen. Charles Schumer (D-N.Y.) has sent a letter to Scott Gottlieb, commissioner of the U.S. Food and Drug Administration (FDA), calling for an investigation into the use of phthalates in food and fast-food packaging. Citing a...more

PTAB Designates As Precedential A Decision Finding Assignor Estoppel Is Not A Defense in IPRs

by Knobbe Martens on

The PTAB recently designated as precedential its 2013 decision that assignor estoppel is not a defense for patent owners in IPR proceedings in Athena Automation Ltd. v. Husky Injection Molding Systems Ltd., IPR2013-00290,...more

Can Unexpected Results Make the Obvious Non-Obvious?

In Honeywell, Int’l Inc. v. Mexichem Amanco Holdings S.A., [16-1996] (August 1, 2017), the Federal Circuit vacated the USTPO’s reexamination decision invalidating claims 1–26, 31–37, 46–49, 58, 59, 61–68, 70–75, 80, and 81 of...more

Exhaustion of Plan Administrative Remedies: Important Considerations Following Hitchcock v. Cumberland

Recently, the Sixth Circuit ruled in Hitchcock v. Cumberland University 403(b) Plan that pension plan participants are not required to exhaust their plan’s administrative remedies before pursuing claims alleging statutory...more

Hutchinson Revisited Surname + Merely Descriptive Term May or May Not Be Registrable

In Earnhardt v. Kerry Earhhardt, Inc., [2016-1939] (July 27, 2017), the Federal Circuit vacated and remanded a TTAB decision dismissing Earnhardt’s opposition because it found that there was no likelihood of confusion between...more

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

In Honeywell v. Mexichem the Circuit vacates a Board determination of obviousness, ruling that the Board improperly relied on inherency, appeared to shift the burden of nonobviousness to the patentee, and violated the APA by...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

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