There is a good possibility that late on Halloween night, the CAFC will receive an emergency motion for a preliminary injunction or temporary restraining order. How does this work:
- Jurisdiction: The CAFC has jurisdiction to immediately hear an appeal to a district court’s denial of injunctive relief under 28 USC 1292 (granting jurisdiction over grants & denials of injunctions) The CAFC has jurisdiction over all cases arising under hte patent laws . 28 USC 1295 This case clearly arises under the patent laws because the complaint asserts that the patent laws preclude the PTO from taking these actions.
- Timing: Normally, a respondent is given at least eight days to respond to a motion in appellate court. FRAP 27. However, the appellate court can shorten that time by giving ‘reasonable notice.’ A temporary order to ‘preserve the status quo’ would not need any notice.
- Emergency Motions:The CAFC has no specific procedure to deal with emergency motions.
- Lone Judge: At the CAFC, most emergency motions involving preliminary injunctive relief are decided by a full three-member panel. However, a single judge will, on occasion, make the determination. In, Tivo v. EchoStar, for instance, Chief Judge Michel issued a temporary stay pending consideration by the full panel. The Federal Rules of Appellate Procedure provide room for a single circuit judge to “act alone on any motion.”
Documents:
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If someone would e-mail briefs in the GSK/Tafas case, I will post them. (dcrouch@patentlyo.com)
