This morning the Federal Circuit released two precedential opinions. The first comes in a veterans case appealed from the Court of Appeals for Veterans Claims. Notably, Judge Newman dissented. The second comes in a patent case appealed from the Central District of California. The court also released a nonprecedential opinion in a patent case appealed from the District of Utah. Finally, the court released three nonprecedential orders. One denies a petition to transfer a case to the Northern District of California; one dismisses an appeal for lack of jurisdiction and denies petitions for writs of mandamus; and one denies a petition and cross-petition to appeal from an order of the Northern District of California. Here are the introductions to the opinions and text from the orders.

Kennedy v. McDonough (Precedential)

Florence Kennedy appeals the judgment of the United States Court of Appeals for Veterans Claims affirming the Board of Veterans’ Appeals’ decision denying her request for an earlier effective date for Dependency and Indemnity Compensation (DIC) under 38 C.F.R. § 3.114. Because Mrs. Kennedy forfeited her regulatory interpretation argument, we affirm.

NEWMAN, Circuit Judge, dissenting.

It is the judicial obligation to say what the law is, to assure that the correct law is applied, and to assure that the law is correctly applied. The panel majority errs in holding that Mrs. Kennedy forfeited consideration of her appeal, leaving untouched all of these flawed rulings.

I respectfully dissent.

Sound View Innovations, LLC v. Hulu, LLC (Precedential)

Sound View appeals. It challenges the claim construction and the summary judgment ruling. It also challenges two interlocutory rulings that excluded, under Federal Rule of Evidence 702, portions of Sound View’s expert testimony on reasonable-royalty damages. Sound View Innovations, LLC v. Hulu, LLC, No. LA CV17-04146, 2019 WL 9047211, at *9–11 (C.D. Cal. Nov. 18, 2019) (Damages Opinion I); Order Re Defendant’s Supplemental Motion to Exclude Testimony of Mr. David Yurkerwich, Sound View Innovations, LLC v. Hulu, LLC, No. LA CV17-04146 (C.D. Cal. June 18, 2020), ECF No. 840 (Damages Opinion II).

We affirm the district court’s construction of the downloading/retrieving limitation. But we reject the district court’s determination that “buffer” cannot cover “a cache,” and we therefore vacate the district court’s grant of summary judgment and remand for further proceedings. Because the evidentiary rulings could matter on remand, we address those rulings—which we affirm.

ESIP Series 1, LLC v. doTerra International, LLC (Nonprecedential)

This is an appeal from a district court’s summary judgment of non-infringement. ESIP Series 1, LLC v. doTerra Int’l, LLC, No. 2:15-CV-00779-RJS, 2021 WL 3195178 (D. Utah July 28, 2021) (Summary Judgment). ESIP owns U.S. Patent No. 7,878,418, which discloses an “Integrated, Essential-Oil Atomizer” apparatus and method for diffusing essential oils into an airstream. ESIP sued Puzhen for infringement of claims 1, 2, and 14 of the ’418 patent.

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We affirm. We agree with the district court’s constructions of the “spaced therefrom” and “anchoring” limitations and also agree that summary judgment for Puzhen necessarily follows on the record made. The district court’s constructions are supported by the specification and by the ordinary meaning of the claim terms used. And ESIP did not identify evidence from which a jury could reasonably find that the accused Puzhen devices come within either of these limitations. Because we uphold the district court’s summary judgment for these two independent reasons, we need not address ESIP’s remaining arguments.

In re Trend Micro Inc. (Nonprecedential Order) 

Trend Micro Inc. petitions for a writ of mandamus directing the United States District Court for the Western District of Texas to vacate its January 12, 2022 order denying transfer and to transfer the case to the United States District Court for the Northern District of California. Kajeet, Inc. opposes the petition. We deny the petition.

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The petition is denied.

In re Roku, Inc. (Nonprecedential Order)

Roku, Inc. directly appeals the Patent Trial and Appeal Board’s decisions declining institution of inter partes review of two patents owned by Universal Electronics, Inc. In reaching that determination, the Board relied on the advanced stage of co-pending parallel proceedings before the International Trade Commission (ITC) involving the same patents and overlapping invalidity arguments. Roku has also filed related petitions for writs of mandamus seeking review of those same non-institution decisions.

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Roku has not provided a sufficient justification for distinguishing Mylan here. Roku argues that the ITC, unlike a district court, cannot issue a decision on patent validity with preclusive effect in other forums, but that does not mean the Board’s non-institution decisions are any less “final and nonappealable” under section 314(d). Regardless of parallel proceedings, “no statute confers jurisdiction over appeals from decisions denying institution,” and “[w]ithout such a statute, we lack jurisdiction over those appeals.” Id. at 1379 (citation omitted). And Roku has not presented a colorable constitutional claim. As in Mylan, Roku’s petitions merely challenge the Board’s exercise of discretion not to institute review proceedings. Pet. 3–4. Under such circumstances, we must dismiss Roku’s direct appeals, and we deny its requests for mandamus relief.



(1) Appeal Nos. 2022-1216, -1217, -1218 are dismissed.

(2) The mandamus petitions are denied.

(3) Costs in Appeal Nos. 2022-1216, -1217, -1218 to Universal Electronics, Inc.

Sonos, Inc. v. Google LLC (Nonprecedential Order)

The parties each petition for permission to appeal from an order of the United States District Court for the Northern District of California concerning the sufficiency of the pleadings under Federal Rules of Civil Procedure 8(a) and 12(b)(6). The district court certified the order for appeal pursuant to 28 U.S.C. § 1292(b).

Under the express language of § 1292(b), this court has “discretion” whether to “permit an appeal to be taken” under the provision. See Digit. Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 883 n.9 (1994) (noting “broad” discretion). Having considered the matter, we decline to permit interlocutory review in this case.



The petition and cross-petition for permission to appeal are denied.