This morning the Federal Circuit issued a precedential opinion in an en banc veterans case. The court unanimously held that equitable tolling is not available in this particular case, but disagreed by an equal vote on the reasoning supporting this judgment. In particular, the judges disagreed as to the general question of whether equitable tolling is available with respect to the effective date of an award of disability compensation to a veteran pursuant to 38 U.S.C. § 5110(b)(1). The court also issued a nonprecedential opinion in a patent case appealed from the United States Patent and Trademark Office’s Patent Trial and Appeal Board, affirming the Board over a partial dissent by Judge Prost. Here are the introductions to the opinions.

Arellano v. McDonough (Precedential)

Upon consideration en banc, a unanimous court holds that equitable tolling is not available to afford Mr. Arellano an effective date earlier than the date his application for benefits was received.

The court is equally divided as to the reasons for its decision and as to the availability of equitable tolling with respect to 38 U.S.C. § 5110(b)(1) in other circumstances. The effect of our decision is to leave in place our prior decision, Andrews v. Principi, 351 F.3d 1134 (Fed. Cir. 2003), which held that principles of equitable tolling are not applicable to the time period in 38 U.S.C. § 5110(b)(1).

Accordingly, the judgment of the United States Court of Appeals for Veterans Claims is affirmed.

CHEN, Circuit Judge, with whom MOORE, Chief Judge, and LOURIE, PROST, TARANTO, and HUGHES, Circuit Judges, join, concurring in the judgment.

By statute, the “effective date of an award” of disability compensation to a veteran “shall not be earlier than the date” the veteran’s “application” for such compensation is received by the Department of Veterans Affairs (VA). 38 U.S.C. § 5110(a)(1). Section 5110(b)(1), however, provides an exception that permits an earlier effective date if the VA receives the application within one year of the veteran’s discharge from military service: under such circumstances, the effective date of the award shall date back to “the day following the date of the veteran’s discharge or release.” Id. § 5110(b)(1). This case poses the question of whether, under an equitable-tolling theory, an award on an application received more than one year after the veteran’s discharge date may still be accorded an effective date of the day after discharge. Specifically, we consider whether the rebuttable presumption of equitable tolling for statutes of limitations established in Irwin v. Department of Veterans Affairs, 498 U.S. 89 (1990), applies to the one-year period in § 5110(b)(1).

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Judge Dyk and five of our colleagues, however, would overturn Andrews and conclude that § 5110(b)(1) is a statute of limitations entitled to Irwin’s presumption. But their basis for affirming the Veterans Court’s decision rests on deciding, in the first instance, that the facts of Mr. Arellano’s case do not warrant equitable tolling. We disagree with this approach both in substance and process. Even if Irwin’s presumption were to somehow apply here, it would be rebutted by the statutory text of § 5110, which evinces clear intent from Congress to foreclose equitable tolling of § 5110(b)(1)’s one-year period. Moreover, it is not our role as an appellate court to decide whether Mr. Arellano’s factual circumstances warrant equitable tolling where no prior tribunal has considered the issue and no party has argued for such an outcome.

DYK, Circuit Judge, with whom NEWMAN, O’MALLEY, REYNA, WALLACH, and STOLL, Circuit Judges, join, concur- ring in the judgment.

The court here agrees that Mr. Arellano’s claim for benefits was untimely, but the court is equally divided on the question whether 38 U.S.C. § 5110(b)(1) is subject to equitable tolling. Judge Chen (joined by Chief Judge Moore and Judges Lourie, Prost, Taranto, and Hughes) would hold that the section is not a statute of limitations, and, even if it were, the presumption of equitable tolling under Irwin has been rebutted. An equal number of judges (Judges Newman, O’Malley, Reyna, Wallach, Stoll, and myself) join this opinion and would hold that § 5110(b)(1) is a statute of limitations subject to equitable tolling, that the Irwin presumption of equitable tolling applies, but that § 5110(b)(1) cannot be equitably tolled for mental disability in the circumstances of this case.

Microsoft Corp. v. FG SRC, LLC (Nonprecedential)

Microsoft Corporation (“Microsoft”) appeals from a final written decision of the United States Patent and Trademark Office Patent Trial and Appeal Board (“the Board”) holding that Microsoft failed to demonstrate that claims 18–25 of U.S. Patent 6,434,687 (“the ’687 patent”) were unpatentable. See Microsoft Corp. v. FG SRC LLC, No. IPR2018-01594, 2020 WL 1818685 (P.T.A.B. Apr. 9, 2020) (“Decision”). We affirm.

PROST, Circuit Judge, concurring in part and dissenting in part.

I agree with the Majority on the result of the procedural question about whether obviousness over the Obelix-and-Skillen combination was raised. But I respectfully disagree about anticipation by Obelix.