This morning, the Federal Circuit issued six nonprecedential opinions: four in patent cases, one in a tax case affirming a dismissal for lack of subject matter jurisdiction, and one in a veterans case. Additionally, the court issued two Rule 36 judgments. Here are the introductions to the opinions and links to the Rule 36 judgments.

Vivint, Inc. v. Alarm.com Inc. (Nonprecedential)

Vivint appeals from final written decisions in two underlying inter partes review (“IPR”) proceedings. This is the second appeal relating to these IPRs. Vivint does not object to the substance of the rulings at issue in this appeal. Vivint only asks that we vacate and remand the Patent Trial and Appeal Board’s (“Board’s”) decisions in light of Arthrex, Inc. v. Smith & Nephew, Inc., 941 F.3d 1320 (Fed. Cir. 2019). We have already held that Vivint forfeited this constitutional challenge. See Order Denying Vivint Inc.’s Mot. to Vacate and Remand, Vivint, Inc. v. Alarm.com Inc., No. 19-2438 (Fed. Cir. Jan. 16, 2020), ECF No. 29. For the reasons explained below, we reiterate that conclusion and affirm the Board’s decisions.

REYNA, Circuit Judge, dissenting.

The majority would have all parties be clairvoyant. My colleagues would require Vivint to have raised an Appointments Clause challenge on or before November 2, 2017— the date in which it filed its opening brief in the previous appeal to this court. See Vivint, Inc. v. Alarm.com Inc., No. 17-2218 (Fed. Cir. Nov. 2, 2017), ECF No. 23. That is two years before Arthrex issued, and nearly one year prior to the filing of the Arthrex opening brief in October 2018. See Arthrex, Inc. v. Smith & Nephew, Inc., No. 18-2140 (Fed. Cir. Oct. 19, 2018), ECF No. 16. The majority thus faults Vivint for its lack of foresight and holds that any Arthrex-based Appointments Clause challenge it may have had is foreclosed on forfeiture grounds. To support that proposition, the majority relies on our post-Arthrex decisions in Customedia Technologies, Sanofi-Aventis, Essity, and IYM Technologies. See Majority Op. at 5, 9–10. But those cases do not involve an appellant that filed an Arthrex-based challenge in its opening brief.

Customedia Technologies created a bright-line forfeiture rule that forecloses an Appointments Clause challenge for appellants that fail to raise the issue in the opening brief or in a motion filed prior to the opening brief. See Customedia Techs., LLC v. Dish Network Corp., 941 F.3d 1174, 1175 (Fed. Cir. 2019). Here, Vivint raised the issue in its opening brief and nearly five months prior to that in the motion that the court denied. See Order, Vivint, Inc. v. Alarm.com Inc., No. 19-2438 (Fed. Cir. Jan. 16, 2020), ECF No. 29. Because Vivint has complied with the Customedia Technologies rule, I see no reason to depart from the uniform application of our precedent.

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I am also not persuaded that we should depart from this court’s judgment in Steuben Foods, Inc. v. Nestle USA, Inc., No. 20-1082, ECF No. 44 (Fed. Cir. Mar. 30, 2020) merely because this case concerns a partial, rather than complete victory at the initial Board proceeding. A successful vacatur-and-remand motion based on an Appointments Clause theory in the first appeal would have led to vacatur of the entire Board decision, including all determinations favorable to Vivint. The majority requires that Vivint should have argued against its own interests in exchange for the opportunity to challenge an unfavorable-in-part agency determination. Such a holding is inconsistent with our post-Arthrex decisions.

With respect, I dissent.

In re Kavanagh (Nonprecedential)

Colleen M. Kavanagh (“Kavanagh”) appeals from a decision of the Patent Trial and Appeal Board (“Board”) affirming an examiner’s final rejection of claims 1, 3–5, and 21–23 of U.S. Patent Application No. 14/172,818 (“the ’818 application”) as obvious under 35 U.S.C. § 103. Ex parte Kavanagh, No. 2018-008867, 2020 WL 1951833 (P.T.A.B. Apr. 17, 2020) (“Board Decision”). We affirm.

Apple Inc. v. INVT SPE LLC (Nonprecedential)

Apple Inc., HTC Corp., and HTC America, Inc. (collectively, Appellants) appeal a Patent Trial and Appeal Board final written decision holding Appellants failed to prove claims 1–3, 5–9, and 11 of U.S. Patent No. 6,611,676 would have been obvious over Keskitalo in view of Lindell. We affirm.

Seong v. Bedra Inc. (Nonprecedential)

Ki-Chul Seong appeals from the final written decision of the Patent Trial and Appeal Board (the “Board”) holding that claims 1–13 and 15 of U.S. Patent 8,822,872 (the “’872 patent”) are unpatentable because they would have been obvious over Tomalin and Nishioka patents and denying Seong’s Contingent Motion to Amend. See Bedra Inc. v. Seong, No. IPR2018-01415, 2020 WL 355007 (P.T.A.B. Jan. 21, 2020) (“Decision”). Seong only appeals from the Board’s decision regarding claims 2–5, 10–12 and 16. Because the Board did not commit legal error, and substantial evidence supports the Board’s factual findings, we affirm.

Taylor v. United States (Nonprecedential)

Byron L. Taylor appeals a final decision of the United States Court of Federal Claims (“Claims Court”) dismissing his complaint for lack of subject matter jurisdiction. We affirm.

Steele v. McDonough (Nonprecedential)

Brandon Steele appeals a decision of the Court of Appeals for Veterans Claims that upholds a Board of Veterans’ Appeals determination that a 1999 Regional Office ratings decision was not based on clear and unmistakable error. Mr. Steele asserts on appeal that the ratings decision was based on speculation and a misapplication of the law. We agree with the Court of Appeals for Veterans Claims decision that the ratings decision was not based on clear and unmistakable error. For the reasons below, we affirm.

Rule 36 Judgments