This morning the Federal Circuit issued three nonprecedential opinions: two involving appeals from the Merit Systems Protection Board and one in a patent infringement case. Here are the introductions to the opinions.
Pybas v. Office of Personnel Management (Nonprecedential)
The petitioner, Michael Pybas, a former law enforcement officer at the Federal Bureau of Prisons, challenges the determination of the Merit Service Protection Board that he is not entitled to an annuity supplement under 5 U.S.C. § 8421(a)(1). We affirm.
Spence v. Department of Veterans Affairs (Nonprecedential)
Jo H. Dubose Spence worked for the Department of Veterans Affairs (DVA) as a lawyer. In 2018, DVA, after taking several other actions against her for unacceptable performance, removed Ms. Spence from her job. Under 5 U.S.C. § 7701, Ms. Spence filed an appeal to the Merit Systems Protection Board, challenging the removal as an “adverse action” under 5 U.S.C. chapter 75. The Board rejected her challenge, including an affirmative defense— raised under 5 U.S.C. § 7701(c)(2)(B)—that her removal was the result of whistleblower reprisal, both for protected disclosures in violation of 5 U.S.C. § 2302(b)(8) and for protected relief-seeking activity in violation of § 2308(b)(9)(A)(i), (B), (C), or (D). The Board’s Removal Appeal decision is not before us. Because Ms. Spence included certain discrimination claims in her Removal Appeal, and wished to press them on judicial review, the forum for review of the Removal Appeal decision was a district court. See Perry v. Merit System Prot. Bd., 137 S. Ct. 1975, 1979– 80 (2017); Kloeckner v. Solis, 568 U.S. 41, 56 (2012). Her challenge in district court is pending.
Separately from her adverse-action appeal, Ms. Spence pressed whistleblower-reprisal claims by seeking corrective action for certain alleged DVA personnel actions, first filing with the Office of Special Counsel and then filing an Individual Right of Action (IRA) appeal to the Board, under 5 U.S.C. §§ 1214, 1221, 7701. The Board, which has authority to hear IRA appeals under 5 U.S.C. § 7701, rejected Ms. Spence’s challenge. As to nearly all of the challenge, the Board ruled that the whistleblower-reprisal claims in the IRA Appeal were barred, under the doctrine of issue preclusion, by the Board’s rejection of whistleblower-reprisal defenses in the Removal Appeal. The Board’s IRA Appeal decision is properly before us on Ms. Spence’s appeal under 5 U.S.C. § 7703(b)(1)(B). We affirm, except in one respect, as to which we vacate and remand.
EcoServices, LLC v. Certified Aviation Services, LLC (Nonprecedential)
This is an appeal from a final judgment of the United States District Court for the Central District of California in a patent infringement case. EcoServices, LLC (“EcoServices”) sued Certified Aviation Services, LLC (“CAS”) in the district court for infringement of two patents pertaining to washing airplane engines: U.S. Patent No. 9,162,262 (“the ’262 patent”) and U.S. Patent No. 5,868,860 (“the ’860 patent”). Following a trial, the jury returned a verdict (1) that CAS infringed claims 1, 9, and 14 of the ’262 patent; (2) that claims 1, 9, and 14 of the ’262 patent are not invalid; and (3) that CAS willfully infringed claims 1 and 2 of the ’860 patent, which expired on May 31, 2016, before trial. The jury awarded EcoServices damages in the amount of $1,949,600. In due course, the district court denied various post-trial motions by CAS pertaining to the eligibility for patenting of the asserted claims of the ’262 patent under 35 U.S.C. § 101 and pertaining to the validity and infringement of those claims. The court also denied CAS’s post-trial motions arguing that claims 1 and 2 of the ’860 patent, the patent’s sole claims, are indefinite and were not infringed. Finally, the court denied CAS’s challenge to the damages awarded by the jury and its challenges to the court’s supplemental damages award of $175,000 and the ongoing royalty rate set by the court for the ’262 patent. Following the entry of judgment, CAS timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1). For the reasons stated below, we hold that claims 1, 9, and 14 of the ’262 patent are eligible for patenting, that the district court did not err in its construction of the term “information detector” appearing in those claims, and that those claims are not invalid and were infringed. We therefore affirm the judgment of infringement of claims 1, 9, and 14 of the ’262 patent.
For the reasons stated below, we also hold that claims 1 and 2 of the expired ’860 patent are not indefinite and were infringed. We therefore affirm the judgment of infringement of the ’860 patent. We also hold, however, that the district court abused its discretion in awarding supplemental damages and an ongoing royalty based upon a rate of $400 per infringing engine wash. Accordingly, we vacate the district court’s supplemental damages award and its determination as to an ongoing royalty. The case is remanded to the district court for a redetermination of the proper supplemental damages and ongoing royalty.
DYK, Circuit Judge, concurring in part and dissenting in part.
I join Parts II-A, II-B, V, and VI of the majority opinion, but respectfully dissent from Part II-C of the majority’s decision holding that claims 1, 9, and 14 of U.S. Patent No. 9,162,262 (“the ’262 patent”) are patent eligible under 35 U.S.C. § 101. Because those claims are not patent eligible, I would not reach the questions in Parts III and IV regarding infringement and invalidity (based on obviousness) of claims 1, 9, and 14.