This morning the Federal Circuit released two precedential opinions and a precedential order. The first precedential comes in a patent case reviewing the grant of a preliminary injunction. The second comes in another patent case addressing a dispute over settlement. Notably, Judge Newman dissented from the majority’s holding. The precedential order comes in a veterans case; the en banc court granted rehearing and called for additional briefing regarding veterans’ statutory entitlement to education benefits. Here are the introductions to the opinions and text from the order.

BlephEx, LLC v. Myco Industries, Inc. (Precedential)

In February 2019, Myco Industries, Inc. (“Myco”) began marketing a product it called the AB Max at a trade show in New Orleans. The AB Max is a device for treating blepharitis. A month later, BlephEx, LLC (“BlephEx”) filed an application that would become United States Patent Number 10,449,087 (“the ’087 patent”). On October 22, 2019, the United States Patent and Trademark Office issued the ’087 patent, entitled “Instrument for Treating an Ocular Disorder.” The same day, BlephEx sued Myco and its chairman, John R. Choate, in the Eastern District of Michigan, alleging that the AB Max infringed claim 16 of the ’087 patent. Soon thereafter, the district court granted a preliminary injunction enjoining Myco and those acting on its behalf from, inter alia, selling, distributing, or offering to sell or distribute the AB Max product. See BlephEx, LLC v. Myco Indus., Inc., No. 2:19-CV-13089, 2020 WL 5951504 (E.D. Mich. Oct. 8, 2020) (“Preliminary Injunction Decision”); BlephEx, LLC v. Myco Indus., Inc., No. 2:19-CV13089, 2020 WL 7134932 (E.D. Mich. Nov. 25, 2020) (“Reconsideration Decision”). Myco appealed.

Because the district court did not abuse its discretion in granting the preliminary injunction, clearly err in its underlying factual findings, or abuse its discretion in setting the scope of the preliminary injunction, we affirm.

PlasmaCAM, Inc. v. CNCElectronics, LLC (Precedential)

PlasmaCAM, Inc. (“Plasmacam”) sued CNCElectronics, LLC, Fourhills Designs, LLC, and Thomas and Martha Caudle (collectively “CNC”) in the Eastern District of Texas for infringing U.S. Patent No. 7,071,441 (“the ’441 patent”) for which Plasmacam has an exclusive license. In December 2019, the parties notified the district court that they had settled the case. However, when the parties met to draft a formal agreement, it became evident that they interpreted the settlement differently, and further negotiations resulted. The parties eventually advised the district court that they had reached a complete agreement. The district court granted the motion to enforce Plasmacam’s version of that agreement and ordered CNC to execute it.

CNC appeals. We hold that this court has jurisdiction over CNC’s appeal. We also reverse the district court’s judgment ordering CNC to execute Plasmacam’s version of the settlement agreement and conclude that CNC’s version of the agreement accurately reflects the parties’ understanding. We remand for further proceedings not inconsistent with this opinion.

NEWMAN, Circuit Judge, dissenting.

I respectfully dissent. There was no “January agreement” of litigation settlement. Nor was there agreement at any other time on all the terms of settlement. PlasmaCAM and CNC negotiated and exchanged several draft agreements, but no final understanding was reached, no meeting of the minds and no signed agreement.

To the contrary: after the parties in December 2019 agreed in principle to settle this litigation, there followed extensive negotiations and draft agreements, until the parties told the district court that “despite their best efforts, they have been unable to finalize and execute a written settlement agreement.” Joint Notice of Non-Settlement and Req. for Telephonic Conference at 1, PlasmaCAM, Inc. v. CNCElectronics, LLC, No. 419-cv-00037-ALM, (E.D. Tex. Jan. 23, 2020), ECF No. 51.

Nonetheless, my colleagues now hold that there was an enforceable binding settlement agreement that they call “the January agreement,” although both sides and the district court agree that there was no such agreement. My colleagues’ holding is contrary to the law of contracts, and contrary to the principles of negotiation. See Crowell v. CIGNA Grp. Ins., 410 F. App’x 788 (5th Cir. 2011):

To form a binding contract, the parties must have a meeting of the minds [.] … All of the parties must assent to the same thing in the same sense at the same time, and their assent must comprehend the proposition as a whole.

Id. at 792 (quoting 14 Tex. Jur. 3d § 68).

The record is contrary to the panel majority’s holding. Neither side argues for a “January agreement;” such an agreement is the unique creation of the panel majority.

Rudisill v. McDonough (Precedential Order)

Appellee, the Secretary of Veterans Affairs (“Secretary”), filed a Combined Petition for Panel Rehearing and Rehearing en banc. A response to the petition was invited by the court and filed by Appellant James R. Rudisill. The petition and response were considered by the panel that heard the appeal and thereafter referred to the circuit judges in regular active service. A poll was requested and taken, and the court decided that the appeal warrants en banc consideration.



(1) The petition for panel rehearing is denied.

(2) The petition for rehearing en banc is granted.

(3) The panel opinion in Rudisill v. McDonough, 4 F.4th 1297 (Fed. Cir. 2021) is vacated, and the appeal is reinstated.

(4) The parties are requested to file new briefs. The briefs should address the following questions:

a. For a veteran who qualifies for the Montgomery GI Bill and the Post-9/11 GI Bill under a separate period of qualifying service, what is the veteran’s statutory entitlement to education benefits?

b. What is the relation between the 48-month entitlement in 38 U.S.C. § 3695(a), and the 36-month entitlement in § 3327(d)(2), as applied to veterans such as Mr. Rudisill with two or more periods of qualifying military service?

(5) The Secretary’s en banc opening brief is due 60 days from the date of this order. Mr. Rudisill’s en banc response brief is due within 45 days of service of the Secretary’s en banc opening brief, and the Secretary’s reply brief within 30 days of service of the response brief. The court requires 30 paper copies of all briefs and appendices provided by the filer within 5 business days from the date of electronic filing of the document. The parties’ briefs must comply with Fed. Cir. R. 32(b)(1).

(6) The court invites the views of amici curiae. Any amicus brief may be filed without consent and leave of court. Any amicus brief supporting Mr. Rudisill’s position or supporting neither position must be filed within 14 days after service of Mr. Rudisill’s en banc opening brief. Any amicus brief supporting the Secretary’s position must be filed within 14 days after service of the Secretary’s en banc response brief. Amicus briefs must comply with Fed. Cir. R. 29(b).

(7) Oral argument will be held at a time and date to be announced later.