Last week, late in the day on Friday the Federal Circuit granted a petition for rehearing and issued a nonprecedential opinion in a patent case. The court noted that Judges Newman and Stoll were recused based on a conflict of interest that was identified by the parties after oral arguments were made and judgment was entered. Judges Moore and Chen replaced Judges Newman and Stoll on the panel. The court admonished that the parties should have notified the court about the conflict sooner and warned that the Federal Circuit expects the utmost candor towards the court concerning conflicts. Here is text from the opinion.

Western Plastics, Inc. v. DuBose Strapping, Inc. (Nonprecedential)

Circuit Judge Newman and Circuit Judge Stoll are recused, taking no position in this decision. Chief Judge Moore and Circuit Judge Chen replaced Circuit Judge Newman and Circuit Judge Stoll on the panel following the court’s initial December 17, 2021 judgment. DuBose raised a potential conflict of interest in its petition for rehearing. That potential conflict was identified to the court more than a month after argument and, in fact, after a judgment was entered against DuBose. Counsel had all of the necessary facts at the time of argument and should have brought the potential conflict to the court’s attention at that time. Delays under these circumstances are the “most egregious.” Pendergraft v. Network of Neighbors, Inc., 745 F. App’x 517, 520 (5th Cir. 2018).

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We expect parties and counsel who appear before this court to have the utmost candor including in issues of potential conflict.

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DuBose Strapping, Inc. (DuBose) appeals the district court’s denial of its motions for summary judgment and judgment as a matter of law that U.S. Patent No. 8,080,304 (’304 patent) is invalid as obvious under 35 U.S.C. § 103. Appellant’s Br. 2, 26. DuBose also appeals the jury’s award of lost profits and finding of willful infringement. Id. at 2– 3, 43, 46. And, DuBose appeals the district court’s grant of Western Plastics, Inc.’s (Western Plastics) motions for summary judgment regarding inequitable conduct, written description, and indefiniteness. Id. at 52, 62. Western Plastics cross-appeals the district court’s denial of attorneys’ fees. Appellee’s Br. 68. For the following reasons, we affirm each of the district court’s decisions and the jury’s verdict.