This morning the Federal Circuit released a precedential opinion in a patent case appealed from the Patent Trial and Appeal Board. In its opinion, the court dismissed-in-part for lack of jurisdiction as to a cancelled claim and affirmed-in-part the Board’s determination that the remaining challenged claims are not patentable because they are obvious. The Federal Circuit also released three nonprecedential orders. One dismisses an appeal as frivolous; one summarily affirms; and one grants an unopposed motion to transfer an appeal from the Northern District of Texas to the Court of Appeals for the Fifth Circuit. Finally, the Federal Circuit released a Rule 36 judgment. Here is the introduction to the opinion, text from the orders, and a link to the Rule 36 Judgment.

Best Medical International, Inc. v. Elekta Inc. (Precedential)

This is an obviousness case where the disputed level of skill in the art impacted the Patent Trial and Appeal Board’s unpatentability determination in two inter partes reviews. In its final written decisions addressing various claims of U.S. Patent No. 6,393,096, the Board found that a person having ordinary skill in the art would have had formal computer programming experience. Petitioner Elekta Inc.’s expert had that experience; Patent Owner Best Medical International Inc.’s (BMI) did not. The Board accordingly discounted BMI’s expert testimony and determined Elekta had proven that challenged claims 1, 43, 44, and 46 were unpatentable as obvious.

BMI appeals the Board’s unpatentability determinations. Prior to filing this appeal, BMI finally canceled claim 1 during an ex parte reexamination. Because there is no longer a case or controversy regarding the patentability of claim 1, we dismiss-in-part BMI’s appeal for lack of jurisdiction and therefore do not reach the merits of the Board’s unpatentability determination for claim 1. For claims 43, 44, and 46, substantial evidence supports the Board’s findings regarding the level of skill in the art and each of the remaining Graham factors. We therefore affirm the Board’s unpatentability determination for those claims.

Mohammed v. United States (Nonprecedential Order)

Having considered Abdul Mohammed’s complaint, the judgment of the United States Court of Federal Claims, and Mr. Mohammed’s informal opening brief, the court now dismisses this appeal under 28 U.S.C. § 1915(e)(2)(B).

* * *

We therefore conclude that Mr. Mohammed’s appeal has no arguable basis in law and dismiss it as frivolous. See Neitzke v. Williams, 490 U.S. 319, 325 (1989) (holding that “an appeal on a matter of law is frivolous where ‘[none] of the legal points [are] arguable on their merits’” (citation omitted, brackets in the original)).



(1) The appeal is dismissed.

(2) Each side shall bear its own costs.

Borusan Mannesmann Boru Sanayi ve Ticaret A.S. v. United States (Nonprecedential Order)

Borusan Mannesmann Boru Sanayi ve Ticaret A.S. moves for summary affirmance of the judgment of the United States Court of International Trade (CIT). Appellants oppose the motion. Borusan replies.

This is the second time this antidumping duty investigation on imports of Borusan’s welding pipes has been before the court. See Borusan Mannesmann Boru Sanayi ve Ticaret A.S. v. Am. Cast Iron Pipe Co., 5 F.4th 1367, 1377 (Fed. Cir. 2021) (sustaining the Department of Commerce’s original post-sale price adjustment determination). Following our mandate and remand, Commerce recalculated Borusan’s estimated dumping margin without adjustment for a cost-based particular market situation (PMS), which resulted in a zero-dumping margin finding.

Appellants filed comments in opposition to those final results at the CIT, arguing that Commerce had erred in not making a PMS adjustment and that the applicable statutes allowed for a PMS adjustment where the sales-below-cost test is utilized. The CIT rejected that argument. Appellants then filed this appeal. Their docketing statement reflects just one issue on appeal: Whether “Commerce has the authority to make an adjustment to reported costs of production based on a finding of a Particular Market Situation for purposes of the sales-below-cost test.” ECF No. 7 at 2.

We agree with Borusan that summary affirmance is appropriate here because the merits of the parties’ positions are so clear that “no substantial question regarding the outcome of the appeal exists.” Joshua v. United States, 17 F.3d 378, 380 (Fed. Cir. 1994) (citation omitted). This court in Hyundai Steel Co. v. United States, 19 F.4th 1346, 1348 (Fed. Cir. 2021), squarely held that “the 2015 amendments to the antidumping statute do not authorize Commerce to use the existence of a PMS as a basis for adjusting a respondent’s costs of production to determine whether a respondent has made home market sales below cost.”

While recognizing Hyundai Steel could potentially resolve this case, Appellants had opposed summary affirmance on the ground that Hyundai Steel was not final, prompting this court to hold this motion in abeyance. But since that time, this court’s mandate in Hyundai Steel issued, and no party sought review of that decision at the Supreme Court. In response to our order on how to proceed, Appellants now briefly attempt a new argument, that this case and Hyundai Steel “have a much different factual posture that merits consideration,” as “the instant case is an appeal of an original investigation, which determines the very existence of an antidumping duty order established by the Commerce Department, as opposed to an appeal of an administrative review that merely decreased the applicable dumping margins under an existing order, as in Hyundai.” ECF No. 18 at 2. But they fail to provide any basis for how that could result in a different outcome.



(1) The motion is granted. The CIT’s judgment is summarily affirmed.

O’Donnell v. Avis Rent A Car System, LLC (Nonprecedential Order)

In response to the court’s June 27, 2022, order to show cause why this appeal from a civil action concerning an automobile accident should not be dismissed or transferred, David O’Donnell moves unopposed to transfer the appeal to the United States Court of Appeals for the Fifth Circuit, stating that he named this court in error in his notice of appeal and that he intended to appeal to the Fifth Circuit.

Upon consideration thereof,


The motion is granted. Pursuant to 28 U.S.C. § 1631, this case and all transmittals are transferred to the United States Court of Appeals for the Fifth Circuit.

Rule 36 Judgment