This morning, the Federal Circuit issued one precedential opinion in a trademark case. The court also issued five nonprecedential opinions: one in an appeal from the Merit Systems Protection Board, two in patent cases, and two in veterans cases. Finally, the court issued four Rule 36 judgments. Here are the introductions to the opinions and links to the Rule 36 judgments.

QuikTrip West, Inc. v. Weigel Stores, Inc. (Precedential)

QuikTrip West, Inc. (“QuikTrip”) appeals from a judgment of the U.S. Patent and Trademark Office Trademark Trial and Appeal Board (“the Board”) dismissing its opposition to Weigel Stores, Inc.’s (“Weigel”) registration of the design mark W WEIGEL’S KITCHEN NOW OPEN. QuikTrip West, Inc. v. Weigel Stores, Inc., No. 91235273 (T.T.A.B. Oct. 24, 2019); J.A. 1–22. The Board dismissed QuikTrip’s opposition on the ground that there was no likelihood that consumers would confuse Weigel’s W WEIGEL’S KITCHEN NOW OPEN mark with QuikTrip’s registered design mark QT KITCHENS. For the reasons set forth below, we affirm.

Beckstead v. Office of Personnel Management (Nonprecedential)

Joyce Beckstead (“Mrs. Beckstead”) appeals from a decision of the Merit Systems Protection Board (the “Board”) denying her a survivor annuity arising from her former husband’s federal service. See Beckstead v. Office of Pers. Mgmt., 2020 MSPB LEXIS 1897 (M.S.P.B. May 11, 2020) (“Board Decision”). We affirm.

Olaf Soot Design, LLC v. Daktronics, Inc. (Nonprecedential)

Olaf Sööt Design, LLC (“OSD”) sued Daktronics, Inc. (“Daktronics”), alleging that Daktronics’s Vortek product infringes claim 27 of U.S. Patent No. 6,520,485 (“the ’485 patent”). Four of the eight elements of claim 27—elements b, d, e, and h—were tried to a jury, which ultimately found that the Vortek product met each of these elements under the doctrine of equivalents. After the jury verdict, Daktronics moved for judgment as a matter of law (“JMOL”) of noninfringement. Daktronics argued that the Vortek product did not meet element h either literally or under the doctrine of equivalents. The district court denied this motion. See Olaf Sööt Design, LLC v. Daktronics, Inc., 406 F. Supp. 3d 328, 338 (S.D.N.Y. 2019) (“Decision Denying JMOL”). Daktronics appealed the final judgment of infringement and several additional rulings. OSD cross-appealed the district court’s judgment of no willful infringement and denial of OSD’s motion for an exceptional-case determination and attorneys’ fees. We have jurisdiction under 28 U.S.C. § 1295(a)(1).

We reverse the final judgment of infringement, mooting the remainder of Daktronics’s appeal and OSD’s cross-appeal.

LOURIE, Circuit Judge, additional views.

I concur in the panel’s decision and fully agree with its reasoning as set forth in Chief Judge Prost’s opinion. I write these separate comments to express concern over the use of the doctrine of equivalents to find infringement when four claim limitations have not literally been met by the accused device.


We have here found deficiencies in the district court’s analysis of element (h) of the asserted claim, but I write only to call attention to the danger in the orderly thinking about infringement determinations, by business people, by attorneys, or by courts, in extending equivalence to multiple claim limitations, which has the potential of destroying the primacy of claims. Yes, we have a doctrine of equivalents, but “it is the exception . . . not the rule, for if the public comes to believe (or fear) that the language of patent claims can never be relied on, and that the doctrine of equivalents is simply the second prong of every infringement charge, regularly available to extend protection beyond the scope of the claims, then claims will cease to serve their intended purpose.” Wallace London & Clemco Prods. v. Carson Pirie Scott & Co., 946 F.2d 1534, 1538 (Fed. Cir. 1991).

In re Abel (Nonprecedential)

Kenton Abel is the named inventor on U.S. Patent Application No. 13/049,873, titled “System and Method of Generating Mailers from Online Interactions.” The examiner rejected pending claims 1–3 of the ’873 application as claiming subject matter ineligible for patenting under 35 U.S.C. § 101. The Patent Trial and Appeal Board affirmed the examiner’s § 101 rejections. We affirm the Board’s decision.

Robinson v. Wilkie (Nonprecedential)

Leroy S. Robinson, Jr. (“Robinson”) appeals from a single-judge decision of the United States Court of Appeals for Veterans Claims (“Veterans Court”) granting Robinson some, but not all, requested attorney fees pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. See Robinson v. Wilkie, No. 15-0715(E), 2019 WL 3938609 (Vet. App. Aug. 21, 2019). Robinson argues that the Veterans Court improperly required him to file a motion for leave to amend his initial EAJA application, wrongly decreased his fees award by excluding certain hours spent on an earlier appeal to this court, and, in the alternative, lacked authority to resolve Robinson’s EAJA application because no final judgment was entered in this case. For the reasons discussed below, we find that any errors in the Veterans Court’s procedure were harmless. We thus affirm as to the legal issues raised by Robinson and dismiss Robinson’s challenge to the court’s accounting.

Rascoe v. Wilkie (Nonprecedential)

Alva N. Rascoe appeals the decision of the United States Court of Appeals for Veterans Claims (Veterans Court). The Veterans Court affirmed a decision of the Board of Veterans’ Appeals (Board), denying him service connection for sleep apnea and hearing loss in his right ear. Because we lack jurisdiction, we dismiss.

Rule 36 Judgments