Federal Circuit - The FindLaw Federal Circuit Court of Appeals Opinion Summaries Blog

February 2014 Archives

Nycal Offshore Development Corporation just learned a lesson on pushing things too far. It was one of several oil companies that were involved in litigation against the United States, beginning in 2002, over breach of contract claims related to the Government's actions preventing the oil companies from drilling.

All the other companies, except Nycal, accepted restitution awards from the Government.

Court of Federal Claims

Nycal, instead, took it further and sued for lost profits, and presumably to its surprise, lost. The Court of Federal Claims found that though the Government could have foreseen that damages would result from its breach, Nycal nonetheless did not prove that the Government actually caused the damages, and that the damages could not be reasonably calculated.

Patent Infringement Burden of Proof Again Before the Court

Last time, the question was whether a declaratory judgment action, seeking a ruling of non-infringement, shifted the burden of proof to the party pursuing the ruling (the alleged patent infringer).

This time, the issue again involves a shifting burden of proof, though the issue is complicated by questions of prior art and obviousness.

Last December, the Federal Circuit held that, once an alleged infringer discloses prior art, the burden of proof shifts to the patent holder to demonstrate that the patent should not be deemed obvious on that basis. Now, a petition for rehearing is pending, with amicus briefs attached.

Metcalf Construction Company's bid was chosen for a Navy contract to build military housing in Oahu, Hawaii. Initially, the contract stated that Metcalf would build 188 units by March 2005, however after many modifications, the final agreement required 212 units by October 17, 2006 for an amount just below $50 million.

In the pre-request report, the Government included preliminary soil test results that could have impacted the building project, and noted that further testing was required once the project was started.

After Metcalf did its own testing, the results were far more serious than anticipated, which resulted in delays, additional costs, and changes to design.

Litigation is a notorious time sucker, but a patent case dragging on for ten years? That's just too long according to the Federal Circuit, who not only vacated and remanded the Patent Trial and Appeal Board ("Board") decision, but urged a "speedy resolution."

Patent 6,554,446 History

Tivoli owns patent 6,554,446 ("'446"), relating to a reflective material "stair-step lighting apparatus" to "alert users to the location of step edges in darkened or low light environments." In 2004, Tivoli sued Tempo for patent infringement, and after an inter partes reexamination, and decision by an examiner, Tivoli appealed to the Board. On February 24, 2012, the Board handed down its decision.

Drama in the Fed: Tension Over Procedural Rule, Vet. Disability

Circuit Court procedures often are so complex that they seem arbitrary. A senior judge can hear a case, but he can't vote on en banc rehearing. He can dissent from a panel rehearing denial, but not an en banc rehearing denial. He can sit on the en banc panel but can't vote or dissent on granting the rehearing.

If that sounds confusing, welcome to the party. Senior Judge Plager was equally confused, and irritated, and expressed as much in a footnote to his dissent, calling the original decision and judge-created rule for determining disability levels for veterans a "miscarriage of justice."

The controversial rule, by the way, clarifies which disability rating applies to veterans, arguably conflicts with applicable regulations, and should lead to more unfavorable rulings for veterans seeking disability benefits.

In the latest battle of the Harmonized Tariff Schedule of the United States ("HTSUS"), Link Snacks, Inc. goes up against the U.S. as the two battle over the very meaning of ... beef jerky products.

What Is Beef Jerky Anyway?

Link Snacks, Inc. imports beef jerky products from New Zealand and Brazil. I've always stayed away from beef jerky because it looks nothing like beef -- but now that I understand the process, I understand why it looks that way, though I will still never eat it (barring unforeseen natural disasters that would necessitate the eating of beef jerky for survival).

The process goes something like this: the beef is sliced, cured for 24 to 48 hours, and then cooked/smoked for three-to six hours, which results in dehydrated meat. (Ew).