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Volume 62, Issue 4
FOREWARD: The Tariff and the Patent: A New Intersection

By The Honorable Jimmy V. Reyna | 62 Am. U. L. Rev. 779 (2013)

Upon joining the judiciary as a Circuit Judge on the U.S. Court of Appeals for the Federal Circuit, I was eager to become immersed in the varied legal subject matter of the Federal Circuit. My anticipation was not disappointed, but it was surpassed by the pleasant discovery of the manner that international trade law and patent law have intersected in my professional life. To me, the patent and the tariff have married.

Prior to joining the bench, I practiced international trade and customs law in Washington, DC for over twenty-five years. This meant providing real-time assistance to companies in meeting their commercial objectives in the context of an international business environment. This rich experience has given me a unique and multifaceted perspective to the issues inherent in the matters I now handle as a Circuit Judge. This perspective has proven invaluable in dealing not only with the complex legal issues in our cases, but also inunderstanding the myriad of vexing technical and commercial issues that comprise the rich subject matter jurisdiction of the Federal

Testing the Limits of Trade Law and Rationality: The GPX Case and Subsidies in Non-Market Economies

By Elliot J. Feldman & John J. Burke | 62 Am. U. L. Rev. 787 (2013) 

Chinese merchandise has been the subject of most international trade disputes, all over the world, for several years. All of China’s principal trading partners, including the United States, Japan, and the European Union, treat China as a non-market economy1 (NME), applying special methodologies for determining whether Chinese enterprises are exporting merchandise at less than fair value. However, until 2006 the recognition of China as an NME meant that unfair trade allegations were based on pricing theories for antidumping, never government programs or actions unfairly subsidizing exported merchandise. The general rule was that government subsidies are countervailable only when they distort markets, and NMEs have no markets to distort. 

2012 International Trade Law Decisions of the Federal Circuit

By John R. Magnus & Sheridan S. McKinney| 62 Am. U. L. Rev. 963 (2013)

When the U.S. Court of Appeals for the Federal Circuit was established by the Federal Courts Improvement Act of 1982 it was vested with the former jurisdiction of its predecessor courts, the U.S. Court of Customs and Patent Appeals and the appellate function of the U.S. Court of Claims, as well as exclusive jurisdiction to hear appeals from the U.S. Court of International Trade (CIT) and the U.S. International Trade Commission (ITC or Commission). The Federal Circuit’s jurisdiction differs significantly from its twelve sister circuit courts in that it derives exclusively from statutory subject matter jurisdiction. Because the court’s exclusive subject matter jurisdiction eliminates the possibility of a circuit split, international trade holdings of the Federal Circuit are infrequently reviewed by the Supreme Court, rendering the Federal Circuit the court of final appeal for most trade cases.

2012 Government Contract Law Decisions of the Federal Circuit

By Matthew H. Solomson, L. Misha Prehein, Ellen M. Lynch, Laura J. Mitchell Baker, Christine Daya, Matthew Gravens, & Emily Patterson | 62 Am. U. L. Rev. 907 (2013)

The Supreme Court of the United States has observed that “[i]n constitutional adjudication, as in the common law, rules of law often develop incrementally as earlier decisions are applied to new factual situations.” The same comment accurately describes the Federal Circuit’s government contracts decisions from this past year; with (arguably) limited exception, the decisions discussed below reflect incremental development of the law, rather than any sea changes. Two exceptions to that generalization—Minesen Co. v. McHugh and Scott Timber Co. v. United States—both engendered significant dissenting opinions, suggesting that the issues addressed therein may well be the subject of a future en banc case. In yet a third case, VanDesande v. United States, the court specifically noted that it was addressing a matter of first impression. 

AFTERWORD: Addressing the Elephant: The Potential Effects of the Patent Cases Pilot Program and Leahy-Smith America Invents Act

By The Honorable Randall R. Rader | 62 Am. U. L. Rev. 1105 (2013)

Recently, I have seen several big-budget television commercials invoke patents while marketing their goods. The general public’s recognition of the importance of patents to innovation and our economy is perhaps at an all-time high. Many factors probably drive this increased awareness, including our daily dependence on modern technology and media coverage of high-profile litigations and patent acquisitions. This increased attention has implications as well in the legal world. For those of us embedded within the patent system, we are experiencing a very important shift in the perception and operation of our discipline. For instance, many of the more prominent jurisdictions for patent trials are implementing local rules allowing uniform, fast, and cost-effective discovery and case development. The Patent Cases Pilot Program is similarly starting to influence the processes and efficiency of patent litigation with a heightened expertise in our already-marvelously-competent trial judges. Of
course, the elephant in the room regarding changes to patent law and litigation is the enactment of the Leahy-Smith America Invents Act (AIA).

2012 Patent Law Decisions of the Federal Circuit

By Robert J. Smyth, David P. Bernstein, Adam D. Brooke, Rudolph Fink IV, Nicholas J. Kim, Janice H. Lee, Rachael Lea Leventhal, David V. Sanker, Mark J. Sullivan, & Yalei Sun | 62 Am. U. L. Rev. 827 (2013)

In its thirtieth year, the Federal Circuit continued to face an increased caseload, including a fourth-consecutive increase in patent
infringement appeals from district courts. During 2012, the court issued several notable en banc opinions providing parties and
practitioners with additional clarity on a range of disputed issues. For example, in Zoltek Corp. v. United States (Zoltek IV), the court reversed
its prior panel decision in Zoltek III,  which limited the scope of 28 U.S.C. § 1498(a) to direct infringement under 35 U.S.C. § 271(a). The court reexamined the premises on which Zoltek III was based and effectively reinstated the government’s potential liability for infringement of method claims directed to manufacturing carbon fiber sheets for the F-22 fighter, where part of the steps began in Japan. In Marine Polymer Technologies, Inc. v. Hemcon, Inc., the court held that an amendment to the claim during reexamination, not mere argument, was necessary to invoke intervening rights. In the much-anticipated decision in Akamai Technologies, Inc. v. Limelight Networks, Inc., the court overruled its decision in BMC Resources Inc. v. Paymentech, L.P., in which the court held that for a party to be liable for induced infringement, some other single entity must be liable for direct infringement. Deliberately avoiding resolving whether direct infringement can be found when no single entity performs all of the claimed steps of the patent, the Akamai court instead focused on the issue of induced infringement squarely before it to hold that liability for induced infringement did not require a single entity to directly infringe. 

2012 Trademark Law Decisions of the Federal Circuit

By Molly R. Silfen, Jason W. Melvin, & Andrew E. Renison | 62 Am. U. L. Rev. 991 (2013)

Among the many cases decided every year by the U.S. Court of Appeals for the Federal Circuit, relatively few relate to trademark law. Unlike patent law and other substantive areas over which the Federal Circuit has exclusive jurisdiction, the court’s jurisdiction over trademark law arises only in appeals from the U.S. Patent and Trademark Office (PTO) and in appeals that otherwise fall within the Federal Circuit’s exclusive jurisdiction—such as appeals involving both patent and trademark issues. In 2012, of the over 700 opinions issued by the court, only thirteen—eleven precedential and two nonprecedential—related to trademark law. Thus, under two percent of the court’s opinions related to trademark law last year. But what the Federal Circuit lacks in quantity it makes up for in the importance of the issues, since the court addresses specialized trademark registration issues that are rarely addressed by other appellate courts. Of the thirteen trademark opinions, twelve began as proceedings before the PTO’s Trademark Trial and Appeal Board (TTAB), and one began in district court, in a case that also involved patent law issues. 

Fresh Eyes on Persistent Issues: Veterans Law at the Federal Circuit in 2012

By James D. Ridgway | 62 Am. U. L. Rev. 1037 (2013)

New beginnings can be as much about the past as they are about the future. Last year’s article on veterans law in the Federal Circuit
noted the extraordinary amount of change occurring in the composition of the court. Instead of speculating about the future, it focused on analyzing the past. A year later, it appears that the future does indeed begin with the past. With a substantially different lineup of judges, practitioners have entered the latest era of the Federal Circuit by revisiting the fundamental role of the courts in veterans law. In 2012, the Federal Circuit addressed numerous cases involving the limits on its authority and that of the Court of Appeals for Veterans Claims (CAVC). Veterans’ representatives have encouraged the Federal Circuit to take a more active role in reviewing individual decisions of the CAVC. They have also argued that the Federal Circuit should prod the CAVC toward reversing the Board of Veterans’ Appeals (BVA) more frequently. In 2012, there was a broad effort by veterans’ representatives to revisit the limits of judicial review. This Article will preface its review of the Federal Circuit’s decisions by considering how efforts to limit attorney representation in the Veterans Judicial Review Act (VJRA) have resulted in the current procedure-heavy focus of judicial review. It will also discuss how these limits might be adjusted to address the system’s current problems of complexity and delay.