This morning the Federal Circuit issued a precedential order granting a petition for initial hearing en banc in a veterans case, one precedential order denying a motion to vacate and remand in light of Arthrex, one nonprecedential order unsealing a nonprecedential opinion in a patent case, the nonprecedential opinion in the patent case, another nonprecedential opinion in a case appealed from the Court of Federal Claims, and another nonprecedential opinion in a patent case. Here is text from the orders and the introductions to the opinions.
National Organization of Veterans’ Advocates, Inc. v. Secretary of Veterans Affairs (Precedential Order)
The National Organization of Veterans’ Advocates, Inc. (“NOVA”) filed a petition for initial hearing en banc. A response thereto was invited by the court and filed by the Secretary of Veterans Affairs. NOVA was granted leave to file a reply in support of the petition. Military-Veterans Advocacy Inc. and the National Veterans Legal Services Program, Paralyzed Veterans of America, and the Veterans of Foreign Wars were granted leave to file briefs as amici curiae in support of the petition.
The petition was referred to the circuit judges who are in regular active service. A poll was requested and taken, and the court has decided that the petition warrants en banc attention.
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The petition for hearing en banc is granted.
(2) The parties are requested to file briefs addressing the following two issues:
A. Whether this court has jurisdiction under 38 U.S.C. § 502 to review provisions of the Department of Veterans Affairs’ Adjudication Procedures Manual M21-1 that are binding on the agency’s initial adjudicators but not on the Board of Veterans’ Appeals, and whether this court should overrule Disabled American Veterans v. Secretary of Veterans Affairs, 859 F.3d 1072 (Fed. Cir. 2017).
B. Whether the time for filing a direct action for judicial review under 38 U.S.C. § 502 is governed by the 60-day deadline specified by Federal Circuit Rule 47.12(a) or only by the six-year statute of limitations in 28 U.S.C. § 2401(a).
(3) NOVA’s opening brief must be filed within 45 days from the date of this order. The Secretary’s brief is due within 45 days after service of NOVA’s opening brief. NOVA’s reply brief must be filed within 30 days after service of the Secretary’s brief.
(4) The court invites the views of amici curiae. Any such brief may be filed without consent and leave of court. Any amicus brief supporting NOVA’s position or supporting neither position must be filed within 20 days after service of NOVA’s opening brief. Any amicus brief supporting the Secretary’s position must be filed within 20 days after service of the Secretary’s brief.
(5) The court requires 24 paper copies of all briefs and appendices provided by the filer within 5 business days from the date of electronic filing of the document. Administrative Order No. 20-01 does not exempt the filing of these paper copies.
(6) This case will be heard en banc on the basis of the briefing ordered herein and oral argument. (7) Oral argument will be scheduled at a later date.
Caterpillar Paving Products Inc. v. Wirtgen America, Inc. (Precedential Order)
At the behest of Wirtgen America, Inc., the Director of the United States Patent and Trademark Office, acting through the Patent Trial and Appeal Board, instituted inter partes review of Caterpillar Paving Products Inc.’s patent. The Board held a hearing on July 30, 2019 and issued its final written decision on November 13, 2019. Caterpillar has appealed and now moves to vacate and remand for a new hearing before a differently constituted panel in light of Arthrex, Inc. v. Smith & Nephew, Inc., 941 F.3d 1320 (Fed. Cir. 2019) issued on October 31, 2019.
The court concludes that Caterpillar has not demonstrated that Arthrex compels a remand. Unlike in prior cases in which this court has recently vacated and remanded, Arthrex issued before the Board’s final written decision in this case. The Director and Wirtgen argue that the Board judges were constitutionally appointed as of the date that this court issued its decision in Arthrex and that no remand is required. Caterpillar contends that even if the panel members became constitutional immediately prior to issuing the final written decision, that “does not cure a year’s worth of constitutional violations influencing the Board’s thinking and conclusions.” The court in Arthrex considered and rejected that argument, expressly limiting its holding “to those cases where final written decisions were issued.” 941 F.3d at 1340. See also Arthrex, Inc. v. Smith & Nephew, Inc., 953 F.3d 760, 764 (Fed. Cir. 2020) (Moore, J., concurring in denial of rehearing) (“Because the APJs were constitutionally appointed as of the implementation of the severance, inter partes review decisions going forward were no longer rendered by unconstitutional panels.”).
Accordingly,
IT IS ORDERED THAT:
(1) The motion to vacate and remand is denied.
(2) Caterpillar’s opening brief is due within 30 days from the date of filing of this order.
Boston Scientific Scimed, Inc. v. Iancu (Nonprecedential Order)
Before the court is the parties’ May 1, 2020, joint response to the Order to Show Cause. The parties have agreed there is no need for redactions. Accordingly,
IT IS ORDERED THAT:
The opinion issued under seal on April 27, 2020 is hereby unsealed.
Boston Scientific Scimed, Inc. v. Iancu (Nonprecedential)
Petitioners Edwards Lifesciences Corporation, Edwards Lifesciences LLC, and Edwards Lifesciences AG (collectively, “Edwards”) sought inter partes review (“IPR”) of claims 1–4 (“the Challenged Claims”) of Appellant Boston Scientific SciMed, Inc.’s (“Boston Scientific”) U.S. Patent No. 8,992,608 (“the ’608 patent”). The U.S. Patent and Trademark Office’s Patent Trial and Appeal Board (“PTAB”) instituted review and issued a final written decision finding, inter alia, that the Challenged Claims are unpatentable as obvious. See Edwards Lifesciences Corp. v. Bos. Sci. SciMed, Inc., No. IPR2017-00060, 2018 WL 1508704, at *1 (P.T.A.B. Mar. 23, 2018).
Boston Scientific appeals. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(4)(A). We affirm.
Langan v. United States (Nonprecedential)
Plaintiff-Appellant Morgan Joseph Langan appeals from a judgment from the Court of Federal Claims (Claims Court) dismissing his complaint for lack of subject matter jurisdiction. See Langan v. United States, No. 18-cv-01603, 2019 WL 3857044 (Fed. Cl. Aug. 16, 2019). For the reasons explained below, we affirm.
Dionex Softron GmgH v. Agilent Technologies, Inc. (Nonprecedential)
Dionex Softron GmbH (“Dionex”) appeals from a decision of the Patent Trial and Appeal Board (“Board”) determining that claims 21–39 of U.S. Patent Application 14/454,577 (the “’577 application”) are unpatentable for lack of written description and indefiniteness under 35 U.S.C. § 112 and that Dionex therefore lacks standing to continue an interference between the ’577 application and U.S. Patent 9,435,773 (the “’773 patent”). See Agilent Techs., Inc. v. Dionex Softron GmbH, Interference No. 106,073, 2019 WL 1453983 (PTAB March 29, 2019) (“Decision”). Because we conclude that the Board did not err in its construction of the claims under 35 U.S.C. § 112(f) and agree that the ’577 application lacks sufficient disclosure under the Board’s construction, we affirm.