This morning the Federal Circuit issued two precedential opinions in patent cases and one precedential opinion in a military case. The Federal Circuit also issued one nonprecedential opinion in a patent case, one nonprecedential opinion in a Merit Systems Protection Board case, one nonprecedential opinion in a veterans case, and one nonprecedential erratum. Here are the introductions to the opinions and the erratum.

Nevro Corp. v. Boston Scientific Corp. (Precedential)

Nevro Corporation sued Boston Scientific Corporation and Boston Scientific Neuromodulation Corporation (collectively, Boston Scientific) in the Northern District of California, alleging infringement of eighteen claims across seven patents: U.S. Patent Nos. 8,359,102; 8,712,533; 8,768,472; 8,792,988; 9,327,125; 9,333,357; and 9,480,842.1 The asserted patents are directed to high-frequency spinal cord stimulation therapy for inhibiting an individual’s pain.2 According to the specification, conventional spinal cord stimulation systems deliver electrical pulses to the spinal cord to generate sensations, such as tingling or paresthesia, that mask or otherwise alter the patient’s pain. ’533 patent at 1:31–49. The claimed invention purportedly improves conventional spinal cord stimulation therapy by using waveforms with high frequency elements or components, which are intended to reduce or eliminate side

In July 2018, the district court issued a joint claim construction and summary judgment order. The district court held invalid as indefinite claims 7, 12, 35, 37 and 58 of the ’533 patent, claims 18, 34 and 55 of the ’125 patent, claims 5 and 34 of the ’357 patent and claims 1 and 22 of the ’842 patent. J.A. 5–11. As to the remaining six asserted claims, which the district court held were not indefinite, the district court granted Boston Scientific summary judgment of noninfringement. J.A. 12–13. Nevro appeals the district court’s judgment of invalidity. Boston Scientific cross-appeals the district court’s determination that the remaining six asserted claims are not indefinite. We have jurisdiction under 28 U.S.C. § 1295(a)(1).

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We have considered the parties remaining arguments and find them unpersuasive. For the foregoing reasons, we vacate and remand the district court’s judgment of invalidity as to claims 7, 12, 35, 37 and 58 of the ’533 patent, claims 18, 34 and 55 of the ’125 patent, claims 5 and 34 of the ’357 patent and claims 1 and 22 of the ’842 patent.

Nike, Inc. v. Adidas AG (Precedential)

This case requires this court to once again consider the notice provisions of the Administrative Procedure Act. Nike, Inc. appeals the Patent Trial and Appeal Board’s decision on remand denying its request to enter substitute claims 47–50 of U.S. Patent No. 7,347,011 on the ground that those claims are unpatentable under 35 U.S.C. § 103. Specifically, Nike asserts that the Board violated the notice provisions of the APA by finding that a limitation of substitute claim 49 was well-known in the art based on a prior art reference that, while in the record, was never cited by adidas AG (“Adidas”) for disclosing that limitation. Nike also challenges the Board’s finding that Nike’s evidence of long-felt but unmet need was insufficient to establish the nonobviousness of substitute claims 47–50. We conclude that substantial evidence supports the Board’s finding that Nike failed to establish a long-felt need for substitute claims 47–50. Because no notice was provided for the Board’s theory of unpatentability for substitute claim 49, however, we vacate the Board’s decision as to substitute claim 49 and remand for the Board to determine whether that claim is unpatentable as obvious after providing the parties with an opportunity to respond.

Baude v. United States (Precedential)

In 2011, an Air Force Selective Continuation Board met to determine whether Lieutenant Colonel Jason D. Engle—then a major in the United States Air Force— should be continued or involuntarily discharged. Under the appropriate regulation, DoDI 1320.08, Engle would have been within the six-year protective window of the regulation and—as the government concedes—he had no disqualifying information in his record. But, just prior to the continuation board’s meeting, the Secretary of the Air Force issued instructions to decrease the protective threshold for officers like Engle and to reverse the regulatory presumption in favor of continuation. The continuation board determined that, under these new instructions, Engle should not be continued. On November 30, 2011, Engle was formally discharged after serving fifteen years, six months, and two days of active duty. SAppx104.1 Less than six months later, Engle was involuntarily called back up from the reserves, deployed to Kyrgyzstan, and promoted to Lieutenant Colonel. Now, Engle continues to serve his country, but without the retirement benefits and additional active duty pay for which he would have qualified if he had been presumptively continued under the original regulation.

While the military is given a wide berth with respect to its decision making, its discretion is not wide enough to justify the process it employed in this matter. The Administrative Procedures Act demands more, and officers like Lieutenant Colonel Engle deserve more.

Engle, on behalf of himself and sixteen others, appeals from a decision of the United States Court of Federal Claims (“Claims Court”) upholding denials of petitions for special boards under 10 U.S.C. § 1558 by the Air Force Board for Correction of Military Records (“AFBCMR”). Baude v. United States, 137 Fed. Cl. 441 (2018); see Appx1 (Judgment). With respect to Engle’s claim, because the Secretary of the Air Force does not have the discretion to rewrite DoDI 1320.08, we reverse the judgment of the Court of Federal Claims and remand for further proceedings. We dismiss with respect to the remaining claims because Engle, a non-attorney and the sole appellant in this case, cannot represent or assert rights on behalf of other parties.

WALLACH, Circuit Judge, dissenting.

This case is about the balance between Congress’s power to “raise and support Armies,” U.S. CONST. art. I, § 8, cl. 12, and the judiciary’s authority to “say what the law is,” Marbury v. Madison, 5 U.S. 137, 177 (1803); see Fisher v. United States, 402 F.3d 1167, 1177 (Fed. Cir. 2005) (en banc) (“A court may decide whether the military has complied with procedures set forth in its own regulations[.]”). The Majority, neglecting the former in exercise of the latter, misreads paragraph 6.3 of Department of Defense Instruction (“DoDI”) 1320.08, Continuation of Commissioned Officers on Active Duty and on the Reserve Active Status List (Mar. 14, 2007), and divests the Secretary of the Air Force (“SecAF”) of his authority to meet congressionally mandated end-strength numbers and his discretion to manage the U.S. Air Force’s (“Air Force”) work force. The Majority opinion is incorrect in substance and pernicious in effect. The result is a derogation of civilian control of the military and the good order and discipline of the armed services.

Accordingly, I respectfully dissent.

EMED Technologies Corp. v. Repro-Med Systems, Inc. (Nonprecedential)

Plaintiff EMED Technologies Corporation (EMED) sued Repro-Med Systems, Inc. (Repro-Med) for infringement of U.S. Patent No. 8,961,476 (the ’476 patent). Following claim construction, the district court granted Repro- Med’s motion for summary judgment of noninfringement. EMED appeals the noninfringement ruling. We affirm.

Demery v. Army (Nonprecedential)

Libby Demery seeks review of a decision of the Merit Systems Protection Board (Board) denying Ms. Demery’s request for corrective action under the Whistleblower Protection Act (WPA) as amended by the Whistleblower Protection Enhancement Act (WPEA). The Board concluded that Ms. Demery failed to prove she made any protected disclosure that was a contributing factor in her non-selection for a position vacancy. We affirm.

Young v. Wilkie (Nonprecedential)

Ronald J. Young, a Navy veteran proceeding pro se, appeals the decision of the United States Court of Appeals for Veterans Claims that affirmed a denial of his claim for disability compensation. Mr. Young seeks disability compensation after receiving medical treatment that he claims caused him injuries. He also claims that a treating physician intentionally harmed and sexually assaulted him. We dismiss Mr. Young’s appeal because this court lacks jurisdiction over appeals from the U.S. Court of Appeals for Veterans Claims, such as this, that involve solely challenges to factual determinations, or challenges to the application of law or regulation to the facts of a particular case.

Intellisoft, Ltd. v. Acer America Corp. (Nonprecedential Erratum)

Please make the following changes:

Page 1, last line, add — ; ANDREW SPIELBERGER, Balaban & Spielberger LLP, Los Angeles, CA. — after “COLLIN WHITE.”

Page 2, line 5, delete “; ANDREW SPIELBERGER, Balaban And Spielberger LLP, Los Angeles, CA.”