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Administrative Agency Civil Procedure

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

CAFC Rule 36 Judgement: 24 Hour Affirmance with No Explanation

Nothing hurts worse than a Rule 36 (single page, single sentence affirmance of the decision below) after years of work and millions of dollars spent on a case. Rule 36 makes rehearing, en banc review, and/or cert petitions a...more

DC Circuit Court Newsflash: “Transfer” means “Transfer”

by Dechert LLP on

In an eagerly anticipated (and much speculated upon) decision, a three judge panel of the United States Court of Appeals for the District of Columbia Circuit (“DC Circuit Court”) issued a unanimous opinion on Friday, February...more

PTAB Strategies and Insights - February 2018

The PTAB Strategies and Insights Newsletter is designed to be a valuable resource for all stakeholders in the global patent arena throughout the patent life cycle. To that end, articles will provide perspectives from both...more

Louisiana Loses Bid To Vacate Denial Of Reconsideration Of Arbitral Decision In FEMA Assistance Dispute

by Carlton Fields on

FEMA denied a request by the Louisiana Department of Natural Resources (“LDNR”) for assistance restoring barrier islands following Hurricanes Rita and Katrina....more

Toyota Requests Adverse Judgment After University of Minnesota is Dismissed from IPR on the Basis of Sovereign Immunity

by Knobbe Martens on

A closely watched case on sovereign immunity, Reactive Surfaces Ltd., LLP, v. Toyota Motor Corp., IPR2017-00572, has now been terminated by the patent owner’s request for adverse judgment....more

Federal Circuit Decisions Raise Bar for Invalidating Patents on Section 101 Grounds Before Trial

by Dechert LLP on

Two recent Federal Circuit decisions in the U.S., both penned by Judge Moore, significantly raise the bar for accused infringers seeking to invalidate patents on § 101 grounds before trial. Although one prior Federal Circuit...more

Federal Circuit: Pre-IPR Institution Disclaimer of Claims Insufficient to Avoid Adverse Judgment

by Foley & Lardner LLP on

At this point, several cases have examined the appealability of the Board’s institution decisions in inter partes review (“IPR”) proceedings. See, e.g., Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2142 (2015) (holding...more

Maximizing Patent Term Adjustment: Check the “Express Request” Box if Entering the National Stage Before the 30-Month Date

In Actelion Pharm., Ltd. v. Matal (Fed. Cir. Feb. 6, 2018), the Federal Circuit affirmed the District Court’s holding that the PTO properly determined the patent term adjustment (PTA) for U.S. Patent No. 8,658,675 (“the ‘675...more

In re: Hodges

by Knobbe Martens on

Federal Circuit Summaries - Before Lourie, O’Malley, and Wallach. Appeal from the Patent Trial and Appeal Board. Summary: The PTAB’s finding that an element in a prior art reference is “similar to” a claim limitation,...more

Unsupported Assertions: Expert’s Persuasive Authority Suffers Without Directly Engaging Claim Limitations

by Jones Day on

An expert asserting that a patent claim reciting different features than the prior art is nonetheless “equivalent” to the prior art must address and account for the recited limitations head-on, or otherwise lose persuasive...more

Court Agrees, Agencies Overstepped Their Authority. What’s Next for CLO Managers?

by White & Case LLP on

Recent Developments in the Application of US Risk Retention to CLOs - On February 9, 2018, the United States Court of Appeals for the District of Columbia Circuit (the "DC Circuit Court") issued an opinion addressing...more

Collateral Estoppel at the Federal Circuit for Inter Partes Review Proceedings

by Foley & Lardner LLP on

In Maxlinear, Inc. v. CF CRESPE, LLC, slip op. 2017-1039, the Federal Circuit remanded to the Patent Trial and Appeal Board (“Board”) an inter partes review (“IPR”) proceeding to evaluate the patentability of certain...more

Patent Term Adjustment: Lessons Learned from the Federal Circuit Decision in Actelion v. Matal

We can take two valuable lessons from a recent decision of the Federal Circuit: 1. Review all check boxes on forms when filing a U.S. patent application; and 2. The United States Patent and Trademark Office is not...more

CFPB Issues a Request for Information Regarding Administrative Adjudications

by Weiner Brodsky Kider PC on

The CFPB has issued a Request for Information, seeking comments from the public regarding how it might better improve its administrative adjudication processes, including the Rules of Practice for Adjudication Proceedings...more

Board’s Obvious Analysis Improperly Relied Upon Hindsight

In Polaris Industries, Inc. v. Arctic Cat, Inc., [2016-1807, 2016-2280] (February 9, 2018), the Federal Circuit affirmed in part, vacated in part, and remanded the PTAB’s determination in an IPR that claims of U.S. Patent No....more

The Fate of the CCR Rule “is” Still in Dispute

by Williams Mullen on

In May of last year, Environmental Notes reported on the many petitions that had been filed challenging EPA’s 2015 promulgation of a final waste management rule addressing the management and disposal of coal combustion...more

Risk Retention Rule Overturned for Open-Market CLO Managers: Implications for Managers and Investors

by Ropes & Gray LLP on

On February 9, 2018, a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit (the “D.C. Circuit Court”) invalidated the credit risk retention rule, 79 Fed. Reg. 77,601 (Dec. 24, 2014)...more

PTO’s Rehearing Petition in Bosch: Signaling Future Rulemaking After Aqua Products?

by Jones Day on

On February 5, 2018, the PTO filed a petition for rehearing of Bosch Auto. Serv. Sol’ns, LLC v. Matal, 878 F.3d 1027 (Fed. Cir., Dec. 22, 2017). The petition asks the panel “not . . . to alter its judgment, but only to...more

Fresh From the Bench: Latest Federal Circuit Court Cases

Berkheimer v. HP Inc., Appeal No. 2017-1437 (Fed. Cir. Feb. 8, 2018) - In Berkheimer v. HP Inc., the Federal Circuit reviewed the District Court’s summary judgment finding that certain claims of a patent were invalid as...more

Patent Prosecutors Beware: Earlier Publication Anticipates Broad Claims of Continuing Application

by Jones Day on

A recent written decision by the PTAB in connection with an inter partes review (IPR) proceeding is a reminder to patent prosecutors to carefully consider the possible construction of claim terms in a continuation or...more

Process Limitations are Presumed to Impart Structural Limitations, Even Where it is not Clear What those Limitations Are

In In re Nordt Development Co., LLC, [2017-1445] (February 8, 2018), the Federal Circuit rejected the Board’s claim construction of “injection molded” as a process limitation with no patentable weight, vacated the Board’s...more

LSTA’s Argument That CLO Managers Are Not “Securitizers” in Open-Market CLOs Carries the Day in Court. Now What?

by Shearman & Sterling LLP on

On February 9, 2018, the D.C. Court of Appeals ruled that treating managers of open-market CLOs as “securitizers” subject to the risk retention rules exceeded the statutory authority to promulgate rules to implement the risk...more

Walker Process Monopolization Claim Does not Depend upon Resolution of a Substantial Question of Federal Patent Law

In Xitronix Corp. v. Kla-Tencor Corp., [2016-2746] (February 9, 2018), the Federal Circuit transferred an appeal of a Walker Process claim to the United States Court of Appeals for the Fifth Circuit, which has appellate...more

Key Patent Decisions of 2017

by Jones Day on

In another noteworthy year for patent law, the U.S. Supreme Court and Federal Circuit issued a number of decisions that altered the patent landscape, including four Supreme Court decisions. The topics of the key cases...more

Polaris Industries, Inc. v. Arctic Cat, Inc.

by Knobbe Martens on

Federal Circuit Summaries - Before Lourie, O’Malley, and Hughes. Appeal from the Patent Trial and Appeal Board. Summary: Evaluation of “teaching away” requires consideration of whether a reference “criticize[s],...more

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