Federal Circuit Update (June 2025)
Client Alert | July 11, 2025
This edition of Gibson Dunn’s Federal Circuit Update for June summarizes the current status of petitions pending before the Supreme Court and recent Federal Circuit decisions concerning claim construction, standing, and secondary considerations of non-obviousness.
Federal Circuit News
Noteworthy Petitions for a Writ of Certiorari:
There was a potentially impactful petition filed before the Supreme Court in June 2025:
- Gesture Technology Partners, LLC v. Unified Patents, LLC (US No. 24-1281): The question presented is: “Whether the PTO has the authority to conduct administrative adjudications regarding the validity of expired patents, and thereby extinguish private property rights through a non-Article III forum without a jury, even though the patent owner no longer possesses the right to exclude the public from its invention.” Response briefs are due July 16, 2025.
We provide an update below of the petitions pending before the Supreme Court, which were summarized in our May 2025 update:
- Purdue Pharma L.P. v. Accord Healthcare, Inc. (US No. 24-1132): The respondent filed its response brief on June 2, 2025, and the petitioners filed a reply brief on June 17, 2025. The Court will consider the petition at its September 29, 2025 conference.
- The Court denied the petitions in In re Micron Technology, Inc. (US No. 24-1216) and McLeay v. Stewart (US No. 24-1181)
Upcoming Oral Argument Calendar
The list of upcoming arguments at the Federal Circuit is available on the court’s website.
Key Case Summaries (June 2025)
Alnylam Pharmaceuticals, Inc. v. Moderna, Inc., et al., No. 23-2357 (Fed. Cir. Jun. 4, 2025): Alnylam sued Moderna alleging that Moderna’s COVID-19 vaccine infringed Alnylam’s patents. During claim construction proceedings, the parties disputed the meaning of “branched alkyl.” The district court concluded that Alnylam had acted as its own lexicographer and construed the term to require an alkyl group with a carbon bonded to at least three other carbon atoms, consistent with the definition set forth in the specification. The parties stipulated to non-infringement under this construction, and the district court entered final judgment accordingly.
The Federal Circuit (Taranto, J., joined by Chen and Hughes, JJ.) affirmed. The Court held that the patentee had acted as its own lexicographer in defining the term “branched alkyl” to require a carbon bonded to three or more carbons (rather than at least two carbons, as would be the plain and ordinary meaning of the term). The Court reasoned that once the high threshold for lexicography is met, a similarly high threshold would have to be met before finding a departure from that controlling definition. The Court did not find Alnylam’s arguments regarding the dependent claims, prosecution history, and certain examples in the specification required a departure from the definition found in the specification.
Dolby Laboratories Licensing Corp. v. Unified Patents, LLC, Nos. 23-2110 (Fed. Cir. June 5, 2025): Dolby owns a patent directed to a prediction method using an in-loop filter. Unified Patents filed a petition for inter partes review (IPR) of Dolby’s patent in which Unified Patents asserted that it was the sole real party in interest (RPI). In response, Dolby argued that there were nine other entities that it believed should have been named as RPIs. The Patent Trial and Appeal Board (Board) has a practice of only adjuciating RPI disputes when material to the proceeding in the interest of cost and efficiency. The Board therefore declined to address the RPI dispute, reasoning that adjudicating the RPI dispute was unnecessary where there was no evidence that the nine alleged RPIs would be time-barred or estopped from bringing the IPR or that Unified Patents sought an advantage by omitting the nine alleged RPIs.
The Federal Circuit (Moore, C.J., joined by Clevenger and Chen, JJ.) dismissed the appeal because Dolby failed to show an injury-in-fact, as required to demonstrate Article III standing. The Court held that 35 U.S.C. § 112(a)(2)—which provides that a petition “may be considered only if the petition identifies all real parties in interest”—does not provide an informational right to know the identities of all RPIs in IPR proceedings, the violation of which would constitute an injury-in-fact. The Supreme Court has held that an informational right exists in other statutes, such as the Federal Election Campaign Act (FECA), where one of the express purposes of FECA is to allow the public access to certain information. By contrast, the purpose of the AIA is “to establish a more efficient and streamlined patent system that will improve patent quality and limit unnecessary and counterproductive litigation costs,” and thus, the Court held that the AIA did not create an informational right.
Ancora Technologies, Inc. v. Roku, Inc., No. 23-1674 (Fed. Cir. June 16, 2025): Ancora owns a patent directed to restricting the unauthorized use of licensed software programs on computers. Roku and Nintendo filed two IPRs against Ancora’s patent, challenging its claims as obvious. Ancora raised secondary considerations of non-obviousness, specifically citing industry praise and licensing. The Board held that the challenged claims would have been obvious, and rejected Ancora’s evidence of secondary considerations after finding Ancora failed to establish a nexus between that evidence and the challenged claims.
The Federal Circuit (per curium; Lourie, Reyna, and Hughes, JJ.) vacated and remanded. The Court affirmed the Board’s finding that Ancora failed to establish a nexus between evidence of industry praise and the claimed invention because the Board did not clearly err in finding that Ancora did not link up the press releases to the challenged claims. However, as to the Board’s finding that Ancora failed to show a nexus between the challenged claims and two licenses that Ancora entered into with other parties during settlements in other cases, the Federal Circuit found error. The Federal Circuit held that the Board “applied a more exacting nexus standard than our case law requires for license evidence.” The Court explained that licenses by its nature are directly tied to the patented technology, and therefore, do not require a showing of nexus to the specific claims at issue. Thus, the Court instructed that, on remand, the Board should reconsider the nexus issue of the licenses in its secondary considerations of non-obviousness analysis.
Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding developments at the Federal Circuit. Please contact the Gibson Dunn lawyer with whom you usually work, any leader or member of the firm’s Appellate and Constitutional Law or Intellectual Property practice groups, or the following authors:
Blaine H. Evanson – Orange County (+1 949.451.3805, bevanson@gibsondunn.com)
Audrey Yang – Dallas (+1 214.698.3215, ayang@gibsondunn.com)
Appellate and Constitutional Law:
Thomas H. Dupree Jr. – Washington, D.C. (+1 202.955.8547, tdupree@gibsondunn.com)
Allyson N. Ho – Dallas (+1 214.698.3233, aho@gibsondunn.com)
Julian W. Poon – Los Angeles (+ 213.229.7758, jpoon@gibsondunn.com)
Intellectual Property:
Kate Dominguez – New York (+1 212.351.2338, kdominguez@gibsondunn.com)
Josh Krevitt – New York (+1 212.351.4000, jkrevitt@gibsondunn.com)
Jane M. Love, Ph.D. – New York (+1 212.351.3922, jlove@gibsondunn.com)
© 2025 Gibson, Dunn & Crutcher LLP. All rights reserved. For contact and other information, please visit us at www.gibsondunn.com.
Attorney Advertising: These materials were prepared for general informational purposes only based on information available at the time of publication and are not intended as, do not constitute, and should not be relied upon as, legal advice or a legal opinion on any specific facts or circumstances. Gibson Dunn (and its affiliates, attorneys, and employees) shall not have any liability in connection with any use of these materials. The sharing of these materials does not establish an attorney-client relationship with the recipient and should not be relied upon as an alternative for advice from qualified counsel. Please note that facts and circumstances may vary, and prior results do not guarantee a similar outcome.