Some Interesting Patent Issues Must Percolate

The question of whether Section 102(g) of the patent laws supports infringement suits involving method of use patent claims is an unsettled issue. Sharp brought it to the Federal Circuit’s attention in an interlocutory appeal. See Anvik Corp. v. Sharp Corp., No. 2011-m965 (Fed. Cir. July  8, 2011). This court rarely grants requests for interlocutory review of a hot (or not) legal issue. So Sharp will have to wait until the district court has fully considered the issue and the record has been developed at the trial level. I think that’s the right answer, as the appellate court will need a factual record to fully consider this important issue. This is a case to watch.

And What Would We Do If the Federal Circuit Didn’t Consider a Motion to Transfer a Patent Case Each And Every Month?

Well, life would go on, I guess.

This month, the court decided that two bedding and mattress companies are not entitled to an emergency writ that would grant their request to direct the lower court to transfer their case from California to Missouri. They were sued for infringement of a patent relating to the manufacture of mattress box springs. Noting that both companies have manufacturing plants in California (but none in Missouri) that perform the accused manufacturing methods, the Federal Circuit denied this petition. In re Leggett & Platt, Inc., No. 2011-m986 (Fed. Cir. July 7, 2011).

When Is It My Turn At the Federal Circuit?

Lawyers are a cautious breed.  We like to cover ourselves in case things don’t go as planned (or a judge disagrees with our point-of-view).  So if something big happens at the district court, like the court grants summary judgment on an important issue, we appeal. If another big event occurs, we appeal again. That’s a no-no. And the Federal Circuit seems to be getting tired of policing proper exercise of its jurisdiction. For an order that makes this point, read Authenex, Inc. v. EMC Corp., No. 2011-1398 (Fed. Cir. July 7, 2011). In a slightly different vein, the Par pharmaceutical case involved the trial judge’s Rule 54(b) certification of an issue involving dismissal of an invalidity claim brought by Par, because Par obtained a covenant not to sue from the patent owner, Medeva.  Judge Prost determined that the district court did not abuse its discretion when certifying this issue. But the court did not grant Par’s request to expedite the briefing schedule, noting that Par could speed its appeal up a bit anyway under the court’s rules by filings its briefs early. Medeva Pharma Suisse v. Par Pharmaceutical, Inc., No. 2011-1391 (Fed. Cir. July 7, 2011).

Holding Cases and Judgments at the Appellate Level

The court also considered a request to “deactivate” an appealed case that is dependent on the outcome of another pending case and extend the deadlines for filing briefs. The court stayed the briefing schedule until its opinion issued in the other case. IGT v. Alliance Gaming Corp., No. 2011-1351 (Fed. Cir. July 7, 2011).

In a non-patent case, the Federal Circuit considered a request to stay a judgment of the U.S. Court of International Trade. It stayed the antidumping determination relating to ball bearings, after considering the Supreme Court’s 4-factor test: (1) whether the party requesting the stay has made a strong showing that he will likely succeed on the merits, (2) whether the party will be irreparably injured absent a stay, (3) whether issuance of the stay will substantially injure the other parties who have an interest in the case, and (4) where the public interest lies in all of this. NSK Corp. v. United States, Nos. 2011-1362, -1382, -1383, -1454 (Fed. Cir. July 6, 2011). However, when considering a request to stay an injunction pending the appellate court’s consideration of the injunction issue involving a pharmaceutical product, the court granted that stay only with respect to one provision in the injunction. So the rest of the injunction remains intact and enforceable during the appeal. Eurand Inc. v. Mylan, Nos. 2011-1399, -1409 (Fed. Cir. July 7, 2011).


This month, a number of judges signed motion orders, though it seems that Judges Newman, Schall, and Dyk were assigned to the motions panel in July. This is unusual. Generally, a new three-judge panel considers the motions pending at the Federal Circuit each month, and sometimes, they send certain motions to the merits panel assigned to the case. Maybe it’s a summer thing…