This morning the Federal Circuit issued a precedential opinion in a veterans case appealed from the Court of Appeals for Veterans Claims. The opinion, decided partially en banc, addresses evidentiary standards applicable in veterans’ cases. Judges Reyna, Newman, and O’Malley filed a separate opinion concurring-in-part and dissenting-in-part with respect to the part of the opinion decided by the en banc court. The court also issued three nonprecedential opinions. Two come in patent cases appealed from the Patent Trial and Appeal Board and one comes in a trademark case appealed from the Trademark Trial and Appeal Board. The court also issued a nonprecedential order related to the opinion decided in part by the en banc court as well as two Rule 36 judgments. Here are the introductions to the opinions and order and links to the Rule 36 judgments.

Lynch v. McDonough (Precedential, Partially En Banc)

Joe A. Lynch appeals the final decision of the United States Court of Appeals for Veterans Claims (“Veterans Court”) affirming the Board of Veterans’ Appeals’ (“Board”) denial of his claim for a disability rating greater than 30% for service-connected post-traumatic stress disorder (“PTSD”). Lynch v. Wilkie, No. 19-3106, 2020 WL 1899169 (Vet. App. Apr. 17, 2020) (“Decision”). In affirming the Board’s denial, the Veterans Court relied on Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001), to determine that the “benefit of the doubt rule” under 38 U.S.C. § 5107(b) did not apply to Mr. Lynch’s claim. Mr. Lynch argues that Ortiz departs from the “approximate balance” of the evidence standard, as set forth in 38 U.S.C. § 5107(b), to trigger the benefit-of-the-doubt rule, and that Ortiz was therefore wrongly decided. Today’s opinion, considered and decided in part by the court en banc, addresses Ortiz.

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For the foregoing reasons, we affirm.

REYNA, Circuit Judge, with whom NEWMAN and O’MALLEY, Circuit Judges, join, concurring-in-part and dissenting-in-part from Part II.B.

Today the court takes en banc action directed to this court’s precedent articulated in Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The purpose of the en banc action is to “clarify” the court’s holding in Ortiz. The result is that the court departs from its holding in Ortiz and sets a new analytical standard for applying the benefit-of-the-doubt rule under 38 U.S.C. § 5107. I agree with the court’s decision to reject the preponderance of evidence standard set in Ortiz. I cannot, however, agree with the court’s installment of a “persuasion of evidence standard,’’ and the refusal to overturn Ortiz in its entirety. For the reasons stated below, I concur-in-part and dissent-in-part from the decision of the court.

KOM Software, Inc. v. NetApp, Inc. (Nonprecedential)

KOM Software, Inc. owns four related patents claiming systems and methods for restricting access to a storage medium: U.S. Patent Nos. 7,076,624, 7,536,524, 8,234,477, and 9,361,243. On petitions from NetApp, Inc., the Patent Trial and Appeal Board conducted five inter partes reviews of numerous claims of those patents: IPR Nos. 2019- 00598, -00604, -00606, -00607, and -00608. The Board determined that NetApp had shown most of the challenged claims to be unpatentable for obviousness over the prior art (Vossen, Nagar, Denning, McGovern, and Kung). KOM appeals with respect to the claims ruled unpatentable; NetApp cross-appeals with respect to the claims upheld. We affirm.

KOM Software, Inc. v. NetApp, Inc. (Nonprecedential)

KOM Software, Inc. owns U.S. Patent No. 6,654,864. NetApp, Inc. filed a petition for inter partes review of claims 1–3, 5, 6, and 9. The Patent Trial and Appeal Board (Board) determined that claims 1–3 were anticipated by U.S. Patent No. 6,185,661 (Ofek) but upheld claims 5, 6, and 9. KOM appeals with respect to the claims the Board found to be unpatentable and NetApp cross-appeals with respect to the claims the Board upheld. We affirm.

Sky International AG v. Sky Cinemas LLC (Nonprecedential)

Appellant Sky International AG opposed a trademark application filed by appellee Sky Cinemas LLC due to Sky International’s prior registration of several similar marks. The Trademark Trial and Appeal Board found in favor of Sky Cinemas on the opposition, finding no likelihood of confusion between Sky International’s marks and Sky Cinema’s mark. We affirm.

Lynch v. McDonough (Nonprecedential Order)

Upon consideration thereof,

Joe A. Lynch filed a petition for rehearing en banc. A response to the petition was invited by the court and filed by the Secretary of Veterans Affairs. The court also accepted an amicus brief filed by Military-Veterans Advocacy Inc. The petition was first referred as a petition for panel rehearing to the panel that heard the appeal, and thereafter the petition for rehearing en banc was referred to the circuit judges who are in regular active service. A poll was requested and taken, and the court decided that the appeal warranted en banc consideration.


(1) The petition for panel rehearing is denied.

(2) The petition for rehearing en banc is granted for the limited purpose of addressing Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).

(3) The panel’s judgment and original opinion entered on June 3, 2021, are vacated and replaced with the accompanying revised opinion, concurrence-in-part and dissenting-part, and judgment.

Rule 36 Judgments