This morning, the Federal Circuit issued one precedential opinion in a veterans case. Additionally, the court issued three nonprecedential opinions in patent cases. Here are the introductions to the opinions.
George v. McDonough (Precedential)
Kevin R. George and Michael B. Martin (collectively, Appellants) are military veterans whose respective claims for disability benefits were denied several decades ago in final decisions by the Department of Veterans Affairs (VA). More recently, Appellants each filed a motion for revision of those denial decisions, alleging that the VA in those decisions had committed clear and unmistakable error (CUE). The VA’s denials had been based in part on a straightforward application of a then-existing regulation, 38 C.F.R. § 3.304(b) (“Presumption of soundness”), that was years later overturned. In Appellants’ view, the VA’s reliance on a now-invalidated regulation in its denials of Appellants’ original claims establishes CUE.
The United States Court of Appeals for Veterans Claims (Veterans Court) affirmed the Board of Veterans’ Appeals’ (Board) denials of Appellants’ CUE motions, reasoning that the VA did not commit a clear and unmistakable legal error when it faithfully applied the version of the presumption of soundness regulation that existed at the time of the denials. Because Jordan v. Nicholson and Disabled American Veterans v. Gober establish that a legal-based CUE requires a misapplication of the law as it was understood at that time, and cannot arise from a subsequent change in interpretation of law by the agency or judiciary, we affirm. See Jordan v. Nicholson, 401 F.3d 1296 (Fed. Cir. 2005); Disabled Am. Veterans v. Gober, 234 F.3d 682 (Fed. Cir. 2000) (DAV), overruled in part on other grounds by Nat’l Org. of Veterans’ Advocates, Inc. v. Sec’y of Veterans Affairs, 981 F.3d 1360, 1373 (Fed. Cir. 2020) (en banc).
CyWee Group Ltd. v. Google LLC (Nonprecedential)
Google LLC (“Google”) petitioned for inter partes review (“IPR”) of claims 1 and 3–5 of U.S. Patent No. 8,441,438 (“the ’438 patent”) and claims 10 and 12 of U.S. Patent No. 8,552,978 (“the ’978 patent”), asserting that the challenged claims are unpatentable as obvious. Each of Google’s prior art combinations relied on Bachmann. The Patent Trial and Appeal Board (“Board”) instituted IPR and agreed with Google that the challenged claims would have been obvious. Google LLC v. CyWee Grp. Ltd., No. IPR2018–01257, Paper 87 (P.T.A.B. Jan. 9, 2020) (“’978 Decision”); Google LLC v. CyWee Grp. Ltd., No. IPR2018–01258, Paper 86 (P.T.A.B. Jan. 9, 2020) (“’438 Decision”). CyWee Group Ltd. (“CyWee”) appeals.
We have jurisdiction under 28 U.S.C. § 1295(a)(4)(A). We affirm.
Sling TV, L.L.C. v. Realtime Adaptive Streaming, LLC (Nonprecedential)
Sling TV, LLC, Sling Media, LLC, Dish Network, LLC, and Dish Technologies, LLC (together, Sling) directly appeal the Patent Trial and Appeal Board’s determination to deinstitute two inter partes review proceedings, IPR2018- 01342 and IPR2018-01331, which involve, respectively, U.S. Patent Nos. 8,934,535 and 8,867,610, owned by Realtime Adaptive Streaming, LLC. See J.A. 11–24 (Jan. 17, 2020 deinstitution in IPR2018-01342); J.A. 1–9 (Jan. 17, 2020 deinstitution in IPR2018-01331). Sling also alternatively petitions for a writ of mandamus. We dismiss in part and deny in part.
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In this matter, we see no basis for a disposition different from the one in Mylan: We dismiss the appeal and deny the mandamus petition. Sling has not shown that our precedent equating a deinstitution decision with an initial decision to deny institution was implicitly overruled by the Supreme Court in Thryv, Inc. v. Click-To-Call Technologies, LP, 140 S. Ct. 1367 (2020), which did not involve or address such a deinstitution decision, or by our decision in Arthrex, Inc. v. Smith & Nephew, Inc., 880 F.3d 1345 (Fed. Cir. 2018), which could not overrule our precedent and did not involve a deinstitution decision (under 37 C.F.R. § 42.72) but entry of an adverse judgment (under 37 C.F.R. § 42.73). Nor has Sling presented a colorable constitutional claim. And Sling likewise has not identified a nonconstitutional claim that newly suggests a persuasive justification for granting mandamus or for providing an available basis for direct-appeal jurisdiction that we did not foresee in Mylan: Sling’s challenges here, as in Mylan, are to an exercise of discretion not to institute. See J.A. at 5, 8 (exercising discretion, even aside from any binding Board precedent); J.A. 15–18 (same). In these circumstances, we dismiss Sling’s appeal and deny its petition in No. 20-1601.
PI Advanced Materials Co. v. Kaneka Corp. (Nonprecedential)
PI Advanced Materials Co., Ltd., formerly known as SKC Kolon PI, Inc. (“SKPI”) filed a declaratory judgment action against Kaneka Corp. (“Kaneka”) in the United States District Court for the Central District of California seeking a declaration of non-infringement of Kaneka’s U.S. Patent No. 7,691,961 (“the ’961 patent”). Kaneka counterclaimed for induced infringement of the ’961 patent and U.S. Patent Nos. 9,441,082 (“the ’082 patent”) and 6,264,866 (“the ’866 patent”).
The district court granted summary judgment of noninfringement. For the SKPI products at issue on appeal, the district court concluded that no reasonable jury could find that they were imported into the United States, which meant that Kaneka could not prove the underlying direct infringement essential to its inducement claims. Kaneka appeals. We affirm.