This morning the Federal Circuit issued one nonprecedential opinion in a patent case and one nonprecedential opinion in a Merit Systems Protection Board case. Here are the introductions to the opinions.

ProMOS Technologies, Inc. v. Samsung Electronics Co. (Nonprecedential)

In two inter partes review proceedings requested by Samsung Electronics Co. (“Samsung”), the U.S. Patent Trial and Appeal Board (“the Board”) invalidated all challenged claims of U.S. Patent No. 6,069,507 (the “’507 patent”), which is assigned to ProMOS Technologies, Inc. (“ProMOS”). J.A. 3; J.A.II. 3. 1 The Board found the challenged claims unpatentable as anticipated and obvious. ProMOS appeals the Board’s final written decisions, arguing that the Board’s invalidity findings are erroneous because its construction of the “maintaining” limitation is erroneous. Because we agree with the Board’s construction, we affirm the Board’s decisions.

REYNA, Circuit Judge, dissenting.

The ’507 patent concerns an improvement to the operation of a delay locked loop—a circuit used to synchronize digital clocks by delaying the signal of one clock (here, an input clock signal) relative to the signal of another (here, a feedback clock signal) to compensate for the “phase difference” between the signals. At issue is whether this “phase difference,” as used in the claim term “maintaining the phase difference between the input clock signal and the feedback clock signal [within] approximately 180 ̊” is to be measured in only one direction, i.e., as the lag of the feedback signal behind the input signal, or whether “phase difference” refers to the variance between the clock signals in either direction, i.e. as either the lag or the lead of the input signal relative to the feedback signal.

A careful analysis of the way “phase difference” is used in the claims, and the way the invention is described in the specification, makes clear that the phase difference recited in the ’507 patent is unidirectional. Neither the majority nor the Board, however, engage in this analysis. Instead, they begin with the assumption that the “plain meaning” of the term “phase difference” is bi-directional. Only then do they turn to the intrinsic evidence to assess whether a “directional limitation” should be “imported” into the claims under the exacting criteria for lexicography and express disavowal.

This is contrary to the framework we set forth in Phillips, which dictates that the relevant plain meaning of a claim term is its meaning in the context of the patent, to be discerned at the outset in the context of the specification and other intrinsic evidence. Because the majority embraces a construction of “phase difference” divorced from its usage in the patent and affirms the invalidation of the challenged claims based on that erroneous construction, I respectfully dissent.

Kammunkun v. Defense (Nonprecedential)

Ms. Diana Z. Kammunkun petitions for review of a Merit Systems Protection Board (“MSPB”) decision (1) dismissing her action contesting her removal from Federal service pursuant to Chapter 75 of Title 5 of the United States Code; and (2) denying her individual right of action appeal seeking corrective action for whistleblowing reprisal. Kammunkun v. Dep’t of Defense, Nos. SF-1221-17- 0675-W-1, SF-0752-17-0667-I-1, 2018 WL 4739856, (M.S.P.B. Oct. 25, 2018). We have jurisdiction under 28 U.S.C. § 1295(a)(9).

As the government concedes, Ms. Kammunkun’s Chapter 75 action must be remanded for further proceedings. Resp’t’s Br. 52–54.

The administrative judge dismissed Ms. Kammunkun’s Chapter 75 action because (a) Ms. Kammunkun had previously elected to contest her removal with the Office of Special Counsel and subsequent individual right of action appeal; and (b) the election requirement of 5 C.F.R. § 1209.2(d) prevented Ms. Kammunkun from also challenging her removal via a Chapter 75 action. The administrative judge’s decision became the decision of the MSPB.

The administrative judge erred in interpreting 5 C.F.R. § 1209.2(d), which applies only to employees, as applying to Ms. Kammunkun, who was a supervisor. Section 1209.2(d) states that, “[u]nder 5 U.S.C. 7121(g)(3), an employee who believes he or she was subjected to a covered personnel action in retaliation for whistleblowing or other protected activity” may elect only one of three listed remedies. 5 C.F.R. § 1209.2(d)(1) (emphasis added). An “employee” for purposes of 5 U.S.C. § 7121(g)(3) is defined by 5 U.S.C. § 7103(a)(2), which specifically excludes “supervisor[s].” It is undisputed that Ms. Kammunkun was a supervisor. Pet’r’s Br. 3; Resp’t’s Br. 1. Accordingly, the election requirement of § 1209.2 does not apply to Ms. Kammunkun.

We therefore vacate the administrative judge’s decision with respect to the Chapter 75 action and remand for further proceedings. The parties disagree as to the appropriate scope of the proceedings on remand. Compare Pet’r’s Reply Br. 10–14, with Resp’t’s Br. 54. We leave it to the administrative judge to make this determination in the first instance.

We affirm the decision of the administrative judge with respect to the individual right of action claim.