Latest 3 Cases This Week: Baxalta Inc. v. Genentech, Inc. (Fed. Cir.), Christy, Inc. v. United States (Fed. Cir.), Neville v. Foundation ...

Drafted and Shafted: Who Should Complain About Male-Only Registration?

SHERRY F. COLB

Cornell law professor comments on a recent opinion by the U.S. Court of Appeals for the Fifth Circuit holding that requiring men but not women to register for the draft is constitutional under mandatory U.S. Supreme Court precedents. Specifically, Colb considers what the U.S. Supreme Court should do if it agrees to hear the case and more narrowly, whether the motives of the plaintiffs in that case bear on how the case should come out.

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Baxalta Inc. v. Genentech, Inc.

Court: US Court of Appeals for the Federal Circuit

Docket: 19-1527

Opinion Date: August 27, 2020

Judge: Kimberly Ann Moore

Areas of Law: Drugs & Biotech, Intellectual Property, Patents

Baxalta sued Genentech, asserting that Genentech’s Hemlibra® product used to treat the blood clotting disorder hemophilia infringes claims of its 590 patent. The 590 patent relates to preparations used to treat hemophilia patients who have developed factor VIII inhibitors. After the district court issued a claim construction order, construing the terms “antibody” and “antibody fragment,” the parties stipulated to non-infringement of the asserted claims. The Federal Circuit vacated, finding that the district court erred in construing the terms by selecting a narrower construction, which is inconsistent with the written description and the plain language of the claim.

Christy, Inc. v. United States

Court: US Court of Appeals for the Federal Circuit

Docket: 19-1738

Opinion Date: August 24, 2020

Judge: Todd Michael Hughes

Areas of Law: Constitutional Law, Intellectual Property, Patents

Christy applied for a patent on its “ambient air backflushed filter vacuum” invention. The patent claiming that invention issued in 2006. Christy paid the patent's $1,000 issuance fee and the $490 3.5-year, $1,800 7.5-year, and $3,700 11.5-year maintenance fees. Christy and its licensee sued competitors for patent infringement. One competitor filed petitions for inter partes review (IPR). The Federal Circuit affirmed the Patent Trial and Appeal Board’s invalidity decision. Aggrieved by the cancellation of 18 claims of the patent, Christy filed a class-action suit, seeking compensation from the government, with a Fifth Amendment takings claim and, alternatively, an illegal exaction claim, seeking compensation amounting to the issuance and maintenance fees, Christy’s investments made in the technologies, and attorney fees spent in defending the IPR. The Federal Circuit affirmed the dismissal of the suit. The cancellation of patent claims in an IPR does not amount to a compensable taking. Christy’s argument regarding the fees fails because the law requires payment of the fees without regard to any later result of post-issuance proceedings, 35 U.S.C. 41, 151. Christy identifies no statute, regulation, or constitutional provision compelling the fees’ refund if claims are later canceled in post-issuance proceedings. Without showing how the PTO’s actions contravened the Constitution, a statute, or a regulation, Christy cannot state an illegal exaction claim.

Neville v. Foundation Constructors, Inc.

Court: US Court of Appeals for the Federal Circuit

Docket: 20-1132

Opinion Date: August 27, 2020

Judge: Raymond T. Chen

Areas of Law: Intellectual Property, Patents

Neville’s 708 patent and its parent 236 patent relate to foundation piles, which are tubular structures placed into the ground to provide stability for the foundations built over them. Such foundation piles can be driven into the ground through direct application of force or through rotational torque. The claimed inventions are directed to the screw-type foundation pile. The specification explains that rotational torque is applied through a “helical flight” at the tip of the foundation pile, which “draws the pile into a soil bed,” which is depicted in the figures as a structure similar to the helical structure of a screw. The Federal Circuit affirmed summary judgment, finding that Foundation’s accused products do not infringe. The district court properly construed the terms “end plate having a substantially flat surface,” and “protrusion extending outwardly from the end plate.”