This morning the Federal Circuit released two nonprecedential opinions. One comes in a patent case appealed from the Patent Trial and Appeal Board; the second comes in a veterans case appealed from the Court of Appeals for Veterans Claims. The Federal Circuit also released two nonprecedential orders. One dismisses an appeal and one grants-in-part a motion for summary disposition of a petition. Here are the introductions to the opinions, text from the order, and a link to the dismissal.

Trend Micro Inc. v. Cupp Computing AS (Nonprecedential)

Trend Micro Inc. filed petitions in the Patent and Trademark Office seeking inter partes reviews (IPRs) under 35 U.S.C. §§ 311–19 of certain claims of two patents owned by CUPP Computing AS—claims 1, 7, and 16 of U.S. Patent No. 8,365,272 and claims 1, 6, and 7 of U.S. Patent No. 9,756,079. The PTO’s Patent Trial and Appeal Board, after instituting and conducting the requested reviews, issued final written decisions holding each claim 1 to be unpatentable but rejecting Trend Micro’s challenges to claims 7 and 16 of the ’272 patent and claims 6 and 7 of the ’079 patent. Trend Micro Inc. v. CUPP Computing AS, No. IPR2019-00561, 2020 WL 3709007, at *1 (P.T.A.B. July 6, 2020) (IPR561 Decision); Trend Micro Inc. v. CUPP Computing AS, No. IPR2019-00641, 2020 WL 3697863, at *1 (P.T.A.B. July 6, 2020) (IPR641 Decision). Trend Micro appeals the Board’s holding regarding claims 7 and 16 of the ’272 patent and claim 7 of the ’079 patent. We vacate the Board’s final written decisions on each appealed claim and remand.

Frick v. McDonough (Nonprecedential)

In 1961, Robert Frick filed a claim for veteran’s disability benefits with a regional office of the agency now called the Department of Veterans Affairs (VA), alleging that he had disability-causing recurrent shoulder dislocations connected to his military service. The regional office denied Mr. Frick’s claim in a final rating decision in 1961. In May 2018, however, VA’s Board of Veterans’ Appeals reopened Mr. Frick’s claim based on new and material evidence and found his identified shoulder conditions to be service connected. Implementing the Board’s May 2018 decision, VA awarded him benefits for his shoulder disabilities with an effective date of January 30, 2014, the day he filed his successful request to reopen his claim.

Mr. Frick appealed that effective-date ruling to the Board, seeking an earlier effective date back to 1961 on the ground that the 1961 rating decision was based on clear and unmistakable error (CUE). Understanding Mr. Frick’s CUE claim to allege that VA, in 1961, erroneously denied him a statutory presumption of soundness, see 38 U.S.C. § 1111 (current version), the Board found no such error— specifically, no CUE in VA’s 1961 ruling that his benefits claim failed under that presumption’s element addressing aggravation of a preexisting condition. Mr. Frick appealed to the Court of Appeals for Veterans Claims (Veterans Court), where he did not urge a Board error regarding the presumption of soundness but, instead, contended that the Board erroneously failed to consider a CUE claim based on the presumption of aggravation, see 38 U.S.C. § 1153 (current version), which he said he had raised to the Board. The Veterans Court affirmed the Board’s decision, concluding that the Board’s ruling on the aggravation element of the presumption of soundness effectively disposed of any CUE claim based on the presumption of aggravation. Frick v. McDonough, No. 20-1009, 2021 WL 2149678 (Vet. App. May 27, 2021).

Mr. Frick appeals to this court. The Veterans Court’s decision raises questions of law regarding both that court’s jurisdiction over and the merits of a CUE claim by Mr. Frick invoking the presumption of aggravation. Because the Veterans Court decision may well have relied on legal error in one or both respects, we vacate the decision insofar as it decided a CUE claim invoking the presumption of aggravation, and we remand to the Veterans Court for consideration of its jurisdiction over such a claim and, if it properly finds jurisdiction, for reconsideration of that claim. No other challenge being presented, we otherwise affirm the decision of the Veterans Court.

Kimmel v. Secretary of Veterans Affairs (Nonprecedential Order)

Petitioners Joshua Kimmel and Amanda Wolfe move, inter alia, for summary disposition of their petition for review. The Secretary of Veterans Affairs opposes that motion and moves to dismiss the petition as moot or stay it until the Department of Veterans Affairs (VA) publishes a revised rule.

This petition concerns 38 U.S.C. § 1725, which requires the VA to reimburse veterans for the cost of emergency care received at non-VA facilities but prohibits reimbursement for “any copayment or similar payment that the veteran owes the third party or for which the veteran is responsible under a health-plan contract,” 38 U.S.C. § 1725(c)(4)(D). Relying on that prohibition, the VA promulgated the regulation that is the subject of this petition, 38 C.F.R. § 17.1005(a)(5), to exclude reimbursements “for any copayment, deductible, coinsurance, or similar payment.”

In a prior proceeding, Ms. Wolfe (and another claimant) petitioned the Court of Appeals for Veterans Claims for a writ of mandamus to enjoin the VA from denying reimbursement for coinsurance payments incurred during emergency medical visits to non-VA facilities. The Veterans Court held § 17.1005(a)(5) was inconsistent with § 1725. On appeal, this court similarly held that Ms. Wolfe had a clear legal right to relief with regard to coinsurance but that she had alternative avenues for relief, including review pursuant to 38 U.S.C. § 502. Wolfe v. McDonough, 28 F.4th 1348, 1354–60 (Fed. Cir. 2022). This petition under section 502 then followed.

Under section 502, this court will hold unlawful and set aside a rulemaking action of the Secretary that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); Mortg. Invs. Corp. v. Gober, 220 F.3d 1375, 1377–78 (Fed. Cir. 2000). And we may grant summary disposition where “the position of one party is so clearly correct as a matter of law that no substantial question regarding the outcome . . . exists.” Joshua v. United States, 17 F.3d 378, 380 (Fed. Cir. 1994). Here, petitioners argue that there is no question that § 17.1005(a)(5) as written is unlawful, given our prior explanation in Wolfe that “coinsurance is the very type of partial coverage that Congress did not wish to exclude from reimbursement” under § 1725. 28 F.4th at 1356.

The Secretary does not challenge that decision. In fact, he states that the VA has “recently decided to revise section 17.1005(a)(5) to remove the bar on reimbursing coinsurance,” and that the Department “recently began processing claims for reimbursement of coinsurance.” ECF No. 25 at 2. The Secretary argues that, in light of these actions taken after the petition was filed, see Appx 2, the petition has become moot. We disagree. It is undisputed that the regulation at-issue has not been repealed or amended, and it is well established that voluntary cessation of allegedly unlawful conduct ordinarily will not moot a controversy and prevent its adjudication by a federal court, see City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 & n.10 (1982) unless “it is impossible for a court to grant any effectual relief whatever to the prevailing party,” Knox v. Serv. Emps. Int’l Union, Loc. 1000, 567 U.S. 298, 307 (2012) (internal quotation marks and citations omitted). Relief is available here, because as even the Secretary notes, we may still “set aside the coinsurance provision in 38 C.F.R. § 17.1005(a)(5),” ECF No. 25 at 14.

For the reasons explained in Wolfe, we hold that 38 C.F.R. § 17.1005(a)(5)’s exclusion of coinsurance reimbursement is invalid and direct the VA to undertake expedited rulemaking, in which it shall rescind § 17.1005(a)(5)’s exclusion for coinsurance and revise the regulation consistent with Wolfe. This expedited rulemaking is to be concluded within 120 days from the date of this order. If the VA cannot conclude rulemaking within 120 days of this order, it may move for a reasonable extension of time. While the VA promulgates a revised regulation, the VA is directed to process claims for reimbursement consistent with § 1725, including reimbursement for eligible coinsurance claims.



(1) ECF Nos. 5 and 6 are granted, and the petition for review is granted-in-part such that 38 C.F.R. § 17.1005(a)(5) is vacated to the extent that it operates to allow the Department to deny reimbursement for coinsurance payments incurred during emergency medical visits to non-VA facilities. The case is remanded for proceedings consistent with this order.

(2) Within 60 days from the date of filing of this order, the Secretary is directed to submit to this court a status report under this docket number, briefly stating the status of efforts taken to date to rescind 38 C.F.R. § 17.1005(a)(5) to the extent provided above and to revise the regulation.

(3) The remaining motions are denied.

(4) Each side shall bear its own costs.