Federal Circuit Research Articles

Lessons from Australian family law appeals jurisdiction

ABSTRACT Much has been researched, written about, and subjected to public enquiry with respect to the content of Australian family law arrangements. This study adds to current understanding by the examination of the records of all successful appeals of parenting orders under the recently adopted regime of the Federal Circuit and Family Court of Australia Division 1 Appellate Jurisdiction. Drawing on transcripts from this Court to the date of writing, 35% of applications to appeal parenting orders were successful in being granted a rehearing or variation by the Appellate Jurisdiction. It is these cases which form the basis for this analysis. Employing an inductive thematic analysis, it has been possible to identify the pattern of circumstances most likely to lead to the compromise of the delivery of the declared principles of clear, predictable, and accessible law. Learning from the record of successful appeals, it becomes evident that the Appeals Court plays a relatively unappreciated critical role in identifying the context and nature of risks in the delivery of these core principles and what should be a central focus for attention.

US Legal and Regulatory Update

This article presents an overview of Pfizer v. Sanofi Pasteur, a decision that continues the recent trend of Court of Appeals for the Federal Circuit (CAFC) toward tighter scrutiny of patent claims. The CAFC reaffirmed that an expectation of success in combining and modifying prior art need only be reasonable, not absolute. The results of Pfizer highlights a continued drift by the PTAB and courts toward stricter scrutiny of patent claims, both during prosecution of the claims and during later litigation of the claims. Such claims may be somewhat more difficult to procure, and more open to later invalidation during litigation.

Statistical Properties of the Department of Commerce’s Antidumping Duty Calculation Method with Implications for Current Trade Cases

The Department of Commerce (DOC) uses differential pricing analysis in order to detect whether a foreign exporter dumps goods in the U.S. market at prices lower than the exporter sells the goods for in its domestic market. A dumping duty is then levied on the exporter, the amount of which depends on the dumping margin. Several recent cases at the Federal Circuit Court of Appeals have challenged the DOC’s methodology on statistical grounds. In this article, the DOC’s procedure for calculating the dumping margin is described in detail, including the rules for the controversial zeroing policy. Several statistical issues with the DOC’s approach are identified and some potential improvements are proposed.

In Support of Industry-Conscious Disclosure Standards for Pharmaceutical and Biotechnology Patents

One of the fundamental requirements for a patent application is a disclosure of the invention via an accurate written description with sufficient detail to enable the recreation of the invention. The U.S. patent system has historically reviewed patent applications from various industries with a uniform set of requirements and standards. However, the biotechnology and pharmaceutical industries operate on notably extended product development timelines and face unique administrative pressures related to their products when compared with other industries. In response to these pressures, biotechnology and pharmaceutical companies have traditionally applied for patent protections through liberal use of genus claims and other strategies that allow for early and broad protection of groups of related products. However, three recent decisions by the Federal Circuit, and a subsequent appeal to the Supreme Court, have notably heightened patent disclosure requirements for technologies from these industries. This Comment discusses the Federal Circuit’s and Supreme Court’s decisions, compares these decisions to prior trends in the judiciary, and considers the potential impact of the decisions on the patent environment in the biotechnology and pharmaceutical industries. In light of the decisions’ potential impact on these industries, this Comment argues that the federal judiciary should align the disclosure standard more closely to the requirements of the Patent Act while protecting the usefulness of genus claims for the pharmaceutical and related industries.

Bridging the artificial intelligence inventorship gap

Objective: to study the gaps in the legal regulation of relations in the sphere of inventions made by artificial intelligence.Methods: dialectical approach to cognition of social phenomena, allowing to analyze them in historical development and functioning in the context of the totality of objective and subjective factors, which predetermined the following research methods: formal-logical and sociological.Results: in Thaler v. Vidal, the U.S. Court of Appeals for the Federal Circuit ruled that an artificial intelligence (AI) machine cannot be an inventor under patent law. This decision leaves open the question of whether a natural person can be the legal inventor of AI-generated inventions. This is a pressing question because it decides whether AI-generated inventions are patentable, as no patent rights can exist without an inventor. Scholars have proposed two doctrines that might resolve this question: the doctrine of simultaneous conception and reduction to practice and the doctrine of first to recognize and appreciate. This article analyzes the two doctrines and argues that neither doctrine readily applies to AI-generated inventions, thereby leaving an “inventorship gap”.Scientific novelty: the article is the first to pose and solve the problem of legal regulation of inventions made with the help of artificial intelligence and to state the need for the U.S. Congress to amend the copyright law in terms of recognizing a physical person who uses artificial intelligence to generate inventions as the author of such inventions. It bridges the gap in legal regulation of relations in the sphere of inventions and patenting and facilitates the goals of the patent system.Practical significance: the main provisions and conclusions of the article can be used in scientific, pedagogical and law enforcement activities when considering the issues related to the legal regulation of relations in the sphere of inventions made by artificial intelligence.

NAVIGATING UNITED STATES IMMIGRATION COURTS THROUGH SHADOWING ASYLUM SEEKERS

ABSTRACT This paper is an institutional ethnography of the asylum-seeking process in the U.S. immigration courts. While most hearings are open to the public, the “public” is rarely present at immigration courts. Consequently, the process to observe these legal proceedings is insufficiently understood. In this paper, I reflect on the practice of shadowing migrants as a type of institutional ethnography based on interviews and observations following migrants’ interactions with courtroom actors. I completed 15 observations of hearings across three immigration courts located within the Fifth Federal Circuit. This paper addresses the complexity of researching vulnerable populations. Using feminist geopolitics and feminist geolegalities approaches, I analyze the relationships and interactions that develop between courtroom actors and migrants. Based on my observations, I conclude by discussing acts of humaneness from empathetic gestures between attorney’s and migrants to lenient decisions meted by judges within the larger geopolitical structure of narrow avenues to obtain asylum. Keywords: asylum, institutional ethnography, feminist geolegalities.

No Transfer? No Problem!: The Federal Circuit's Excessive Use of the Most Potent Weapon in the Judicial Arsenal for §1404(a) Transfer Appeals

Like all federal plaintiffs, patent owners who feel their patent has been infringed have the right to file suit in any federal court, so long as venue is proper. Patent plaintiffs often select plaintiff-friendly venues, like the Eastern and Western Districts of Texas. Usually, plaintiffs may select these venues because many of the alleged infringers are large companies with a national presence, which makes them susceptible to suit in many federal courts around the country. Defendants in patent cases often file a motion under 28 U.S.C. § 1404(a) to transfer a case to a more defendant-friendly venue, on the basis that the destination venue is more convenient. If the district court denies the motion to transfer, that almost always ends the matter. The exception is that the defendant can petition the proper appellate court—the Federal Circuit in patent cases—for a writ of mandamus: an “extraordinary remedy” that directs the district court to transfer the case. The Supreme Court has mandated that this remedy is reserved for extreme circumstances and may not be used as an appeal. Despite this clear mandate, the Federal Circuit appears to treat such petitions as full-fledged appeals. This Comment seeks to address the ever-growing number of mandamus petitions being granted by the Federal Circuit. Specifically, this Comment focuses on patent cases filed in Texas federal courts. While patent cases in Texas federal courts, like all other patent cases, are appealed to the Federal Circuit, the Federal Circuit remains bound by Fifth Circuit law on motions to transfer under § 1404(a). The Supreme Court and Fifth Circuit have held that a mandamus petition should only be granted upon a clear abuse of discretion by the district court, but the Federal Circuit seems to misapply Fifth Circuit law. The Federal Circuit’s proclivities in determining the propriety of a petition for a writ of mandamus have caused confusion among Texas plaintiffs and uncertainty in the law. This Comment calls attention to the Federal Circuit’s tendency to: (1) misapply Fifth Circuit transfer law; (2) impermissibly add its own nuances to transfer law; and (3) substitute the district court’s judgment for its own, effectively giving defendants a de novo review; or in other words, a second bite at the apple in attempting to transfer a case. Finally, this Comment proposes solutions including: (1) an expansion of Fifth Circuit § 1404(a) jurisprudence; (2) the Supreme Court granting certiorari to provide clarity on the issue; or (3) a change in the Federal Circuit’s choice of law rule.

Protecting “No Surprises” Journalism: Why Courts Should Preserve the Actual Malice Privilege for News Media that Include the Subject’s Response to Allegations of Misconduct

The recent onset of the “fake news” era has brought with it a wave of public discussion about the importance of ethical journalism. The sheer volume of misinformation from non-traditional online sources has had the corollary effect of also reducing the trust of many in traditional news sources. This is especially the case when the report involves alleged misconduct or scandal, which stands to potentially benefit opponents of the subject person or organization. Traditional news sources have fought vigorously to both differentiate “fake news” and reinstate public trust in sources committed to ethical journalism. But what exactly is “ethical journalism”? Do recognized legal protections relating to free speech and free press rights at all encourage ethical journalism over tactics used by those peddling fake news? The Society of Professional Journalists summarizes the concept well in providing simply that: “Ethical journalism should be accurate and fair.” A key tenet in ensuring both accuracy and fairness is the principle that a journalist should “diligently seek” out the person or organization that is the “subject” of a developing news report “to allow them to respond to criticism or allegations of wrongdoing.” This principle is referred to by many as the “no surprises rule” because it gives the subject a “fair chance to refute the facts” for publication. The Washington Post goes so far as to say in its current Policies and Standards that “[n]o story is fair if it covers individuals or organizations that have not been given the opportunity to address assertions or claims about them made by others.” It is this fundamental “discipline of verification” that “separates journalism from other forms of communication such as propaganda, advertising, fiction, or entertainment.” According to core principles established by the United States Supreme Court in a line of relevant cases, the free speech and free press rights guaranteed by the First Amendment should incentivize the “no surprises rule” and most often protect news media that include the subject person’s response to allegations of misconduct in the published report. Specifically, in most reports involving a public controversy, the news media defendant should be protected by the “actual malice privilege” in a subsequent libel lawsuit brought by the subject person because such person qualifies as a “limited purpose public figure.” However, a lingering dicta observation made in one Supreme Court opinion in this relevant line of cases has created the potential for confusion on this point. Perhaps even more problematic are two artificial self-defense-based exceptions to the actual malice privilege that have been established in two federal circuits, which remove protection of the news media in many relevant circumstances. These exceptions have only become more confused and conflated as they have spread. Given the increasing need to protect and encourage ethical journalism in the online age, and the recent interest from some members of the Supreme Court in reevaluating the scope of the actual malice privilege itself, consideration of the issue is critical at this time. This Article demonstrates that, in most circumstances involving a public controversy, a news media defendant should be protected by the actual malice privilege in a subsequent lawsuit brought by a libel plaintiff that responded to the alleged false statements in a published report. In sum, this Article shows why such a libel plaintiff should be considered a limited purpose public figure.

Section 112(a) Strife at the Federal Circuit: A Call for Congressional Amendment to Save the Genus Claim and Preserve Patent Protection in the Biological Arts

Section 112(a) Strife at the Federal Circuit: A Call for Congressional Amendment to Save the Genus Claim and Preserve Patent Protection in the Biological Arts

On Behalf of All Others Similarly Situated: Class Representation & Equitable Compensation

Class actions require class representation. In class actions, plaintiffs litigate not only on their own behalf but “on behalf of all others similarly situated.” For almost fifty years, federal courts have routinely exercised their inherent equitable authority to award modest compensation to deserving class representatives who help recover common funds benefiting the plaintiff class. These discretionary “incentive awards” are generally intended to compensate class representatives for shouldering certain costs and risks—which are not borne by absent class members—during the pendency of class litigation. The ubiquity of permitting class action incentive awards ended in 2020. In an extraordinary ruling, the Eleventh Circuit held that incentive awards are per se unlawful under late nineteenth-century Supreme Court precedent. This holding has ignited a new controversy in the federal courts with far-reaching implications for the future of class actions. Much of the existing legal scholarship on incentive awards analyzes policy rationales, quantitative trends, and legal standards involving the questions of “When?” and “How much?” to compensate class representatives. Only recently have scholars turned their attention to the more foundational question of whether federal courts have a sound basis to allocate incentive awards to class representatives under any circumstances. This Note weighs in on that debate by revisiting the Eleventh Circuit’s recent decision to categorically ban incentive awards. More importantly, this Note looks to the future and confronts the reality that other federal circuit courts or the Supreme Court could eventually adopt the Eleventh Circuit’s position on incentive awards. Facing that unsettling prospect, this Note presents three proposals—one for policymakers and two for plaintiff-side class action practitioners—that could save the equitable tradition of compensating class representatives and reinforce the viability of the class action device itself.

Judges Judging Judges: Partisanship and Politics in the Federal Circuit Courts of Appeals

Judges Judging Judges: Partisanship and Politics in the Federal Circuit Courts of Appeals

Constitutional accountability for police shootings

AbstractConstitutional accountability for police shootings is imposed in part through civil rights lawsuits alleging Fourth Amendment violations, but little is known about how judges evaluate these claims. I introduce original data on all federal circuit court decisions resolving Fourth Amendment excessive force claims in police shooting cases over three decades. The quasi‐random assignment of a majority‐Republican panel substantially increases the probability of circuit courts finding a police shooting to be constitutional. Capturing law's influence by mapping case facts to the three‐part analytical framework delineated by the Supreme Court in Graham v. Connor, I find that active resistance and threat immediacy are associated with increases in the probability of finding police shootings to be constitutional, but crime severity is not systematically associated with outcomes. In addition, there is evidence that law conditions the effect of politics, with increases in latent Fourth Amendment reasonableness narrowing the partisan outcome gap in constitutional assessments. The quasi‐random assignment of a Black judge does not impact outcomes. The results have important implications for police oversight and longstanding debates in judicial politics over the prevalence of panel effects and the extent to which law influences decision making.

Federal Circuit Reiterates That Drug Safety and Efficacy Are Issues for the FDA, Not the Patent Laws

Federal Circuit Reiterates That Drug Safety and Efficacy Are Issues for the FDA, Not the Patent Laws

The Impact of Oral Argument Attendance

Abstract How does oral argument attendance impact public perceptions of the judiciary? Judicial independence is partly contingent on public support, but the conditions that generate institutional good will are not well understood. We examine how judicial outreach and court exposure inform public attitudes. Leveraging a field-experiment randomizing in-person attendance at oral arguments conducted by a federal circuit court of appeals on a university campus, we find that exposure increases perceptions of institutional legitimacy and the extent to which judicial decisions are motivated by law versus politics. The results have important implications for judicial politics and policy debates concerning reform initiatives involving circuit riding, courtroom cameras, and public outreach.

An Implication in Determining Substantial Similarity of The Court of Appeals for the Federal Circuit on Copyright Law

An Implication in Determining Substantial Similarity of The Court of Appeals for the Federal Circuit on Copyright Law

미국 연방불법행위청구법(FTCA)상 재량기능 예외와 그 시사점

On July 14, 2022, the Supreme Court of Korea made a ruling on the “state compensation claim case due to overcrowded incarceration.”(Korean Supreme Court Decision No. 2017Da266771) One ex-prisoner, recognized the overcrowded confinement period as 186 days, was awarded 1.5 million Korean Won in state compensation and the other ex-prisoner, recognized the overcrowded confinement period as 323 days, was awarded 3 million Korean Won in state compensation. The Supreme Court of Korea acknowledged the state’s damages liability based on the violation of ‘dignity and value as a human being’ Sect. 10 of Korean Constitution, not the violation of specific laws in this ruling. Unlike the National Compensation Act in Korea, the state compensation liability based on the tort of a public officer’s in the United States, which separately stipulates the state compensation liability due to the public officer’s intentional torts and the state compensation liability caused by the public officer’s negligence. The Federal Tort Claims Act has a discretionary function exclusion clause, and the U.S. Supreme Court recognizes this exclusion in its rulings. The U.S. Federal Circuit courts have presented different rulings on the scope of exclusion from discretionary function in relation to the illegal acts of federal officers. In Bivens claims, the alleged violation of the federal constitution here is a violation of very specific constitutional provisions, such as the 1st and 8th Amendments. It did not target violations of the ideology of guaranteeing basic human rights such as ‘dignity and value as a human being’. Regarding the Bivens claim, the U.S. Supreme Court would not hardly find cases in which the state recognized torts liability for the human rights violations of prisoners. Even considering these points, the state compensation liability should not be based on a violation of the Korean Constitution Sect. 10 ‘dignity and value as a human being’, but on a violation of the actual laws or specific regulations. There are concerns that the recognition of state compensation liability due to a violation of the Korean Constitution Sect. 10 ‘dignity and value as a human being’ would have provided a starting point for similar state compensation lawsuits in the future in Korea. If it becomes a catalyst to promote supplementary works such as new legislations and construction of new facilities to improve prisoner’s basic human rights, it might be also considered to be meaningful Korean Supreme Court’s decision in Korea.

Amgen Inc. v. Sandoz Inc. United States Court of Appeals of the Federal Circuit, 2023 No. 2022-1147, 2023 WL 2994166

Biotechnology Law ReportAhead of Print Amgen Inc. v. Sandoz Inc.United States Court of Appeals of the Federal Circuit, 2023 No. 2022-1147, 2023 WL 2994166Edited for Biotechnology Law Report by CHRISTOPHER M. HOLMANEdited for Biotechnology Law Report by CHRISTOPHER M. HOLMANChristopher M. Holman is a Professor of Law at the University of Missouri–Kansas City School of Law; a Senior Scholar at the Center for the Protection of Intellectual Property at the Antonin Scalia Law School, George Mason University; and the Executive Editor of Biotechnology Law Report.Search for more papers by this authorPublished Online:30 May 2023AboutSectionsView articleView Full TextPDF/EPUB Permissions & CitationsDownload CitationsTrack CitationsAdd to favorites Back To Publication ShareShare onFacebookTwitterLinked InRedditEmail View articleFiguresReferencesRelatedDetails Volume 0Issue 0 InformationCopyright 2023, Mary Ann Liebert, Inc., publishersTo cite this article:Edited for Biotechnology Law Report by CHRISTOPHER M. HOLMAN.Amgen Inc. v. Sandoz Inc..Biotechnology Law Report.ahead of printhttp://doi.org/10.1089/blr.2023.29310.cipOnline Ahead of Print:May 30, 2023PDF download

Arbutus Biopharma Corp. v. ModernaTX, Inc. United States Court of Appeals of the Federal Circuit, 2023 65 F.4th 656

Biotechnology Law ReportAhead of Print Arbutus Biopharma Corp. v. ModernaTX, Inc.United States Court of Appeals of the Federal Circuit, 2023 65 F.4th 656Edited for Biotechnology Law Report by CHRISTOPHER M. HOLMANEdited for Biotechnology Law Report by CHRISTOPHER M. HOLMANChristopher M. Holman is a Professor of Law at the University of Missouri–Kansas City School of Law; a Senior Scholar at the Center for the Protection of Intellectual Property at the Antonin Scalia Law School, George Mason University; and the Executive Editor of Biotechnology Law Report.Search for more papers by this authorPublished Online:30 May 2023AboutSectionsView articleView Full TextPDF/EPUB Permissions & CitationsDownload CitationsTrack CitationsAdd to favorites Back To Publication ShareShare onFacebookTwitterLinked InRedditEmail View articleFiguresReferencesRelatedDetails Volume 0Issue 0 InformationCopyright 2023, Mary Ann Liebert, Inc., publishersTo cite this article:Edited for Biotechnology Law Report by CHRISTOPHER M. HOLMAN.Arbutus Biopharma Corp. v. ModernaTX, Inc..Biotechnology Law Report.ahead of printhttp://doi.org/10.1089/blr.2023.29311.cipOnline Ahead of Print:May 30, 2023PDF download

A Singular Disclosure Requirement Is Necessary For Patent Law

The Court of Appeals for the Federal Circuit’s recent jurisprudence on 35 U.S.C. § 112 has selectively and severely curtailed innovation in the fields of pharmaceuticals and biotechnology. Specifically, the Federal Circuit’s shifting position on 35 U.S.C. § 112 and their evolving jurisprudence to combine expanding the application and scope of the written description requirement with a separate, heightened standard for enabling claims directed to innovation in a genus of therapeutic antibodies, or a genus of compounds having functional limitations, has caused havoc in the biopharmaceutical industry. Federal Circuit jurisprudence on how to interpret the disclosure requirements of the 35 U.S.C. § 112 contravenes the statute and Supreme Court precedent by mandating two separate disclosure requirements in place of one, namely that patent applications not only “enable” but also separately “describe” inventions. This recently developed and reactively evolving judge made approach raises the bar exceedingly high for obtaining any meaningful patent protection for new biomedical discoveries, goes against many decades of patent practice, and is proving to be a powerful impediment to the investment necessary for developing new and lifesaving medicines. This article examines patent law’s current disclosure requirements to highlight a failing judicial trajectory and proposes a return to a single 35 U.S.C. § 112(a) standard. By doing so, the great shock that has singled out and disrupted the biopharmaceutical industry will be removed and the law can once again encourage, in a technology-neutral manner, the private sector to innovate in all fields of endeavor, including encouraging the biopharmaceutical industry to develop new lifesaving medicines and treatments.

Patent regime and the geography of cumulative innovation

The localization effect of cumulative innovation was strengthening in the past few decades, a puzzling trend given the decreasing cost of knowledge transmission. To unravel this puzzle, we attend to patent regime and propose a legal perspective. We illustrate with a stylized model that a pro-patent regime re-distributes profits from later innovators to initial patent owners, which discourages distant followers with higher learning and licensing costs and therefore leads to stronger localization of cumulative innovation. We test the model predictions by exploiting an unexpected pro-patent regime change—the creation of the Court of Appeals for the Federal Circuit. We find that follow-on innovations became more localized after patents were strengthened in litigation, especially in regions that experienced a greater increase in patent enforceability. A series of robustness tests and cross-sectional analyses strongly support this finding. Interestingly, we find that scientific knowledge diffusion, which was unaffected by patent regime, became less localized during the same period. Our paper shows that patent regime can shape the geography of cumulative innovation, which has profound implications for firm strategies and policymaking.