This morning the Federal Circuit issued a precedential opinion in a patent case, a nonprecedential opinion in a Merit Systems Protection Board case, and a nonprecedential order denying interlocutory review in a patent case. Here are the introductions to the opinions and text from the order.

Samsung Electronics America, Inc. v. Prisua Engineering Corp. (Precedential)

Samsung Electronics America, Inc., appeals from a decision of the Patent Trial and Appeal Board in an inter partes review proceeding. Samsung petitioned the Board to rule that certain claims of U.S. Patent No. 8,650,591 (“the ’591 patent”), owned by cross-appellant Prisua Engineering Corp. (“Prisua”), were unpatentable. At the conclusion of the proceeding, the Board held that claim 11 of the ’591 patent was unpatentable based on obviousness. However, the Board declined to analyze whether claims 1– 4 and 8 were unpatentable as anticipated or obvious, because it concluded that those claims were indefinite.

On appeal, Samsung contends that the Board should have canceled claims 1–4 and 8 for indefiniteness. In the alternative, Samsung argues that even if the Board was not statutorily authorized to cancel those claims for indefiniteness, it should have assessed whether they would have been anticipated or obvious in view of the cited prior art. Prisua cross-appeals from the Board’s ruling that claim 11 was unpatentable for obviousness. We affirm in part, reverse in part, and remand.

Pamintuan v. Navy (Nonprecedential)

Francisco Cunanan Pamintuan petitions for review of a decision of the Merit Systems Protection Board (“Board”) denying Mr. Pamintuan’s request for corrective action under the Whistleblower Protection Enhancement Act (“WPA”) against the Department of the Navy (“agency”). See Pamintuan v. Dep’t of the Navy, No. SF-1221-19-0179- W-1, 2019 WL 2121458 (M.S.P.B. May 10, 2019) (“Decision”). We affirm.

Feit Electric Company, Inc. v. CFL Technologies LLC (Nonprecedential Order)

Feit Electric Company, Inc. petitions for permission to appeal an interlocutory order certified by the United States District Court for the Northern District of Illinois. CFL Technologies LLC opposes the petition. OSRAM Sylvania, Inc., LEDVANCE, LLC, and General Electric Company (collectively, “Amici”) move unopposed for leave to file a brief amici curiae in support of the petition.

The underlying proceedings involve two patents. As relevant here, Feit argued that one of the patents, U.S. Patent No. 6,172,464, is unenforceable for inequitable conduct as a result of issue preclusion, based on prior judgments so holding before this court significantly changed the law of inequitable conduct in Therasense, Inc. v. Becton, Dickinson & Co., 649 F.3d 1276 (Fed. Cir. 2011) (en banc). The district court held that issue preclusion does not apply here, invoking the change-of-law exception to issue preclusion recognized in Dow Chemical Co. v. Nova Chemicals Corp., 803 F.3d 620 (Fed. Cir. 2015), and other cases. The case is continuing.

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The petition for interlocutory appeal in this matter concerns only one of the patents at issue in the underlying proceeding. Moreover, Feit’s argument for issue preclusion rests ultimately on a single contention based on a single case—that this court’s decision in Morgan v. Dep’t of Energy, 424 F.3d 1271 (Fed. Cir. 2005), which found issue preclusion despite a change-in-law argument, is inconsistent with Dow and other cases on the change-of- law exception. Feit and the amici read too much into Morgan. All that Morgan rejected was a version of the change-in-law exception “so broad” that it would deny preclusion based on judicial decisions that merely “clarify earlier interpretations of a statute.” 424 F.3d at 1276. It did not reject the higher standard for a result-altering intervening change in law required by Dow Chemical, which was applied in this case based on the significant change of law made by this court in Therasense.

Having considered the petition and opposition thereto, we conclude that interlocutory review is not appropriate here.

(1) The petition for permission to appeal is denied.

(2) The motion for leave to file a brief amicus curiae is granted. The brief, ECF No. 12 (pages 9–27), is accepted for filing.