This morning the Federal Circuit issued a precedential opinion in a whistleblower retaliation case appealed from the Merit Systems Protection Board. The court also issued three nonprecedential opinions. The first comes in a veterans case appealed from the Court of Appeals for Veterans Claims. The second comes in an employment case appealed from the Merit Systems Protection Board. And the third comes in a patent case appealed from the Patent Trial and Appeal Board. Notably, Judge Stoll dissented-in-part from the holding in the patent case. The court also issued a nonprecedential order granting a petition for a writ of mandamus, ordering the Eastern District of Texas to require transfer of a patent case. Finally, the court issued two Rule 36 judgments. Here are the introductions to the opinions and order and links to the Rule 36 judgments.

Smolinski v. Merit Systems Protection Board (Precedential)

Dr. George Smolinski petitions for review of a Merit Systems Protection Board decision dismissing his whistleblower retaliation claims against the United States Army for lack of jurisdiction. Smolinski v. Dep’t of Army, No. DC1221-20-0814-W-1, 2020 WL 7496634 (Dec. 14, 2020) (Board Decision). Because the Board correctly dismissed some of Dr. Smolinski’s claims but erred in dismissing others, we affirm-in-part, reverse-in-part, and remand.

Smith-Montanez v. McDonough (Nonprecedential)

The Board of Veterans’ Appeals, in agreement with the relevant VA regional office, denied Mrs. Smith-Montanez’s claim for DIC benefits. As relevant here, the Board recited the regulatory standard requiring that a “contributory cause” of a death have “contributed substantially or materially” to the death. Id. § 3.312(c)(1); see J.A. 25. The Board then found: “The most probative evidence of record does not show that hypertension contributed substantially or materially to cause the Veteran’s death.” J.A. 26–27.

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As relevant here, we may review the Veterans Court’s interpretation of a regulation or other rule of law, but we may not review a factual determination. Id. § 7292(d)(1). We affirm.

Gessel v. Merit Systems Protection Board (Nonprecedential)

Todd Gessel was an employee of the Department of the Air Force for a brief time. After Mr. Gessel lost a key to a government building, requiring costly rekeying, the agency fired him for loss of government property. Mr. Gessel challenged his termination before the Merit Systems Protection Board, alleging that he had been wrongfully terminated based on whistleblowing—specifically, Mr. Gessel’s notifying his supervisor about behavior of one of Mr. Gessel’s non-supervisory coworkers that he found troubling. The Board dismissed the challenge, concluding that Mr. Gessel failed to present a nonfrivolous allegation that he made a disclosure protected by the Whistleblower Protection Act (WPA). Mr. Gessel appeals. We affirm.

Polygroup Limited MCO v. Willis Electric Company, Ltd. (Nonprecedential)

This is a patent case involving lighted artificial trees. Polygroup Limited MCO appeals from the final written decision of the Patent Trial and Appeal Board in an inter partes review upholding the patentability of claims 7, 10, 11, 16–22, 25, 26, and 28 of U.S. Patent No. 8,454,186 and claims 1–3, 5–9, 11, 12, 14, and 15 of U.S. Patent No. 8,454,187. With respect to every claim except claim 7 of the ’186 patent, we reverse the Board’s determination that Polygroup failed to establish the unpatentability of the challenged claims. We conclude that the Board applied erroneous claim constructions and that, under the proper constructions, Miller teaches every limitation of claims 10, 11, 16–22, 25, 26, and 28 of the ’186 patent and claims 1– 3, 5–9, 11, 12, 14, and 15 of the ’187 patent. Polygroup has, therefore, established that these claims are unpatentable.

For claim 7 of the ’186 patent, the Board exceeded the scope of our remand when it considered a combination of Miller and Lessner. We therefore vacate and remand its decision with regard to claim 7 of the ’186 patent.

STOLL, Circuit Judge, concurring-in-part and dissenting-in-part.

I respectfully dissent-in-part. I agree with the Board’s construction of claims 10, 20, and 28 of the ’186 patent and claims 1 and 7 of the ’187 patent, which, in my view, cover a different embodiment than claim 1 of the ’186 patent. Thus, I would affirm the Board’s patentability determinations. As to claim 7 of the ’186 patent, however, I agree with the majority’s analysis and therefore concur with the vacatur and remand of the Board’s decision as to that claim.

In re Netflix, Inc. (Nonprecedential Order)

CA Inc. and Avago Technologies International Sales Pte. Limited (collectively, “CA”), both of which are subsidiaries of Broadcom Corp. brought this patent infringement case in the United States District Court for the Eastern District of Texas against Netflix, Inc. The district court denied Netflix, Inc.’s motion seeking dismissal of the case for improper venue under 28 U.S.C. §§ 1400(b), 1406(a) or, alternatively, transfer of the case to the Northern District of California under 28 U.S.C. § 1404(a). Netflix seeks a writ of mandamus directing the district court to grant its motion; CA opposes. We conclude that, under our precedent, the denial of transfer was a clear abuse of discretion, and we grant mandamus directing transfer. We do not address Netflix’s motion to dismiss for lack of venue.

Rule 36 Judgments