by
If the International Trade Commission (ITC) determines that an article is being imported into the U.S. in such increased quantities as to be a substantial cause of serious injury or the threat thereof, to the competitive domestic industry, the President “shall take all appropriate and feasible action ... which the President determines will facilitate efforts by the domestic industry to make a positive adjustment to import competition and provide greater economic and social benefits than costs, 19 U.S.C. 2251(a). A U.S. manufacturer requested that the President protect U.S. solar manufacturers against foreign imports of crystalline silicon photovoltaic cells. The ITC made an affirmative serious injury determination; the Commissioners were divided with respect to relief. The ITC reported on imports from Canada under the NAFTA Implementation Act, finding that Canada contributed roughly 2% of the relevant imports during the applicable period. Imports from Canada declined in 2015-2016. ITC found that Canadian imports did not “contribute importantly” to the serious injury. In 2018, the President announced a four-year safeguard, including a 30- percent tariff on solar products, whether assembled as cells or modules; finding that imports from Canada accounted for a substantial share and contributed importantly to the serious injury or threat, he did not exempt Canadian imports. Canadian manufacturers and a U.S. importer filed suit. The Federal Circuit affirmed the denial of a preliminary injunction, holding that the President’s actions here were lawful, so there was no probability of success on the merits as required for a preliminary injunction. View "Silfab Solar, Inc. v. United States" on Justia Law

by
A three-year “risk corridors” program described in the Patient Protection and Affordable Care Act, 42 U.S.C. 18001, implemented by the Department of Health and Human Services (HHS), was intended to promote participation in insurance exchanges. Participating insurers, whose costs of providing coverage exceeded the premiums received (using a statutory formula) were to be paid a share of their excess costs while participating plans whose premiums exceeded their costs would pay in a share of their profits. The program “permit[ted] issuers to lower [premiums] by not adding a risk premium" for uncertainties in the 2014-2016 markets. The actual total "payments in"were less than requested "payments out" and Congress prohibited HHS from using its appropriations for the program. Prorated payments were issued. The insurer filed suit. The Federal Circuit affirmed summary judgment in favor of the government. The statute created an obligation of the government to pay exchange participants the amount indicated by the statutory formula but riders in the FY 2015 and 2016 appropriations bills repealed or suspended the obligation to make payments out in an aggregate amount exceeding payments in. Congress made the policy choice to cap payments. No statement or action by the government evinced an intention to form a contract; the risk corridors program was simply an incentive program. Because there was no contract, the insurer’s “takings” claim also failed. View "Land of Lincoln Mutual Health Insurance Co. v. United States" on Justia Law

by
A three-year “risk corridors” program described in the Patient Protection and Affordable Care Act, 42 U.S.C. 18001, implemented by the Department of Health and Human Services (HHS), was intended to promote participation in insurance exchanges. Participating insurers, whose costs of providing coverage exceeded the premiums received (using a statutory formula) were to be paid a share of their excess costs while participating plans whose premiums exceeded their costs would pay in a share of their profits. The program “permit[ted] issuers to lower [premiums] by not adding a risk premium" for uncertainties in the 2014-2016 markets. The actual total "payments in"were less than requested "payments out" and Congress prohibited HHS from using its appropriations for the program. Prorated payments were issued. Moda filed suit. The Claims Court granted Moda partial summary judgment as to liability, stipulated to be $209,830,445.79. Dozens of other insurers filed actions, with mixed results. The Federal Circuit reversed. The statute created an obligation of the government to pay exchange participants the amount indicated by the statutory formula but riders in the FY 2015 and 2016 appropriations bills repealed or suspended the obligation to make payments out in an aggregate amount exceeding payments in. Congress made the policy choice to cap payments. No statement by the government evinced an intention to form a contract; the statute, its regulations, and HHS’s conduct simply created an incentive program. View "Moda Health Plan, Inc. v. United States" on Justia Law

by
A three-year “risk corridors” program described in the Patient Protection and Affordable Care Act, 42 U.S.C. 18001, implemented by the Department of Health and Human Services (HHS), was intended to promote participation in insurance exchanges. Participating insurers, whose costs of providing coverage exceeded the premiums received (using a statutory formula) were to be paid a share of their excess costs while participating plans whose premiums exceeded their costs would pay in a share of their profits. The program “permit[ted] issuers to lower [premiums] by not adding a risk premium" for uncertainties in the 2014-2016 markets. The actual total "payments in"were less than requested "payments out" and Congress prohibited HHS from using its appropriations for the program. Prorated payments were issued. Moda filed suit. The Claims Court granted Moda partial summary judgment as to liability, stipulated to be $209,830,445.79. Dozens of other insurers filed actions, with mixed results. The Federal Circuit reversed. The statute created an obligation of the government to pay exchange participants the amount indicated by the statutory formula but riders in the FY 2015 and 2016 appropriations bills repealed or suspended the obligation to make payments out in an aggregate amount exceeding payments in. Congress made the policy choice to cap payments. No statement by the government evinced an intention to form a contract; the statute, its regulations, and HHS’s conduct simply created an incentive program. View "Moda Health Plan, Inc. v. United States" on Justia Law

by
The Department of Commerce published antidumping and countervailing duty orders on certain crystalline silicon photovoltaic cells imported from China (CSPV Orders). Sunpreme, a U.S. company, imports solar modules produced in China that are composed, in part, of solar cells designed, developed, and tested at Sunpreme’s California facility. Sunpreme’s solar modules had been imported as entry type “01,” ordinary consumption entries not subject to any antidumping or countervailing duties. In April 2015, Customs requested that Sunpreme file its entries under type “03,” entries subject to duties. Sunpreme provided Customs with lab results from an independent third party and invited Customs to its California facility to observe its production process, arguing that its products were not within the scope of the CSPV orders. Customs performed its own laboratory testing. Sunpreme sought relief in the Trade Court. Commerce initiated a formal scope inquiry. The Trade Court issued a preliminary injunction, holding that Customs acted outside its authority in its unilateral interpretation of the scope language of the CSPV Orders to include Sunpreme’s solar modules. Commerce issued its final scope determination concluding that Sunpreme’s products fall within the scope of those Orders. The Federal Circuit reversed, holding that the Trade Court lacked jurisdiction under 28 U.S.C. 1581. Sunpreme was required to exhaust administrative remedies by a scope ruling inquiry and scope ruling determination. View "Sunpreme Inc. v. United States" on Justia Law

by
Stone sued Cook in the Eastern District of Texas, alleging infringement of the 327 patent, which relates to a basket-type medical device used to remove stones from biological systems. Venue was transferred to the Southern District of Indiana. Cook deposed the patent’s inventor, who stated, regarding the addition of the “sheath movement element” in claim 1 to overcome an examiner’s rejection, “I realize there is nothing novel about it.” Cook then petitioned the Patent and Trademark Office for inter partes review of all claims. Following the institution of IPR, one of Stone’s managing members offered to license the 327 patent to Cook for $150,000.00 but negotiations broke down. The Patent Board canceled all of the patent’s claims. Following a dismissal with prejudice, the court denied Cook’s motion for attorney fees, 35 U.S.C. 285. The Federal Circuit affirmed, agreeing the case was not “exceptional” and that Stone lacked any type of “clear notice” of the 327 patent’s invalidity by service of Cook’s invalidity contentions. While one might view Stone’s litigating position as weak given the inventor’s deposition testimony regarding the novelty and origin of claim 1’s sheath handle element, exceptionality is not assessed by a strong or even correct litigating position. View "Stone Basket Innovations, LLC v. Cook Medical LLC" on Justia Law

by
Williams and Winns, former employees of the U.S. Postal Service, were removed from their positions and separately sought review by the Merit Systems Protection Board. The Federal Circuit affirmed the Board’s dismissal of their cases. Only certain federal employees, as defined by statute, can seek review at the Board; neither individual qualified as an “employee” with appeal rights under 5 U.S.C. 7511(a)(1)(B)(ii). The statute states that “‘employee’ means . . . a preference eligible in the excepted service who has completed 1 year of current continuous service in the same or similar positions . . . in the United States Postal Service.” Office of Personnel Management regulations define “current continuous employment” as “a period of employment or service immediately preceding an adverse action without a break in Federal civilian employment of a workday.” The statute is not intended to cover an individual who was employed through a series of temporary appointments; each man took a break of several days between appointments. The court also rejected Williams’s argument that he retained appeal rights from a prior appointment because the Postal Service did not advise him on the loss of appeal rights that would result from his reappointment to a new position. View "Williams v. Merit Systems Protection Board" on Justia Law

by
The Surface and Transportation Board (STB) has regulatory authority over rail carriers, 49 U.S.C. 10501(b). A "discontinuance" allows a rail carrier to preserve a rail corridor for possible reactivation of service; "abandonment" removes the line from the system and terminates the railroad’s common carrier obligation. The 1983 Amendments to the National Trails System Act created an alternative process, “railbanking,” 16 U.S.C. 1241, which maintains STB jurisdiction over the dormant corridor, but allows a third party to assume responsibilities for the right-of-way, preserve the right-of-way for future rail use, and, in the interim, convert the corridor into a recreational trail. The railroad first initiates abandonment proceedings; a party interested in acquiring the corridor then requests an STB Notice of Interim Trail Use (NITU). If an agreement is reached, the STB suspends abandonment proceedings, preventing state law reversionary interests in the corridor from vesting. Property owners who believed they had a reversionary interest began claiming that railbanking constituted a taking: the threshold question is whether the claimant has a compensable property interest, which is often answered by analyzing the original deeds that conveyed the property to the railroad. In 2012, BNSF initiated proceedings to abandon a corridor. The Chicago Department of Transportation indicated interest in railbanking. The STB issued an NITU, giving BNSF until April 2014, to negotiate an agreement, after which the corridor would be abandoned. After numerous extensions, BNSF has neither reached an agreement nor abandoned the corridor. The Federal Circuit affirmed the Claims Court: the deeds between the predecessors-in-interest to the claimants and the original railroad conveyed the property to the railroad in fee simple rather than only an easement. There was no taking of any reversionary interest. View "Chicago Coating Co., LLC v. United States" on Justia Law

by
Medtronic manufactures surgical systems and tools used in spinal surgeries. Spine surgeon Dr. Barry sued Medtronic for patent infringement. Medtronic then petitioned for, and the Patent Board instituted, inter partes review (IPR) proceedings for all claims in both patents. The Board concluded that Medtronic had not proven that the challenged patent claims are unpatentable. The Federal Circuit affirmed in part. Substantial evidence supports that the challenged claims would not have been obvious over two references. The court vacated the Board’s conclusion that certain other references, including a video entitled “Thoracic Pedicle Screws for Idiopathic Scoliosis” and slides entitled “Free Hand Thoracic Screw Placement and Clinical Use in Scoliosis and Kyphosis Surgery” were not prior art because the Board did not fully consider all the factors for determining whether they were publicly accessible. The court noted that the Supreme Court recently held that the statute does not permit a partial institution leading to a partial final written decision and that the final written decisions relating to this appeal do not address every ground raised in the petitions, so the Board will consider the previously non-considered grounds on remand. View "Medtronic, Inc. v. Barry" on Justia Law

by
PGS’s patent describes and claims methods and systems for performing “marine seismic surveying” to determine the structure of earth formations below the seabed. WesternGeco, a competitor of PGS’s, filed three petitions requesting inter partes reviews (IPRs) of claims 1– 38 of the patent. The Patent Trial and Appeal Board instituted three IPRs, but it specified for review only some of the claims WesternGeco challenged and only some of the grounds for WesternGeco’s challenges. The Board ruled partly for PGS and partly for WesternGeco on the reviewed claims and grounds. The Federal Circuit affirmed that certain claims of the patent are unpatentable for obviousness. Although precedent now makes clear that the Board erred in limiting the scope of the IPRs it instituted and hence the scope of its final written decisions, the court found that it had jurisdiction to address the merits of the Board’s final written decisions without reviving the “non-instituted” claims and grounds. View "PGS Geophysical AS v. Iancu" on Justia Law