This morning, the Federal Circuit released one precedential opinion, four nonprecedential opinions, and three nonprecedential orders. The precedential opinion reverses a judgement of the Patent Trial and Appeal Board based on an erroneous claim construction. The first nonprecedential opinion addresses an appeal from a judgment in a takings case; the second resolves an appeal from a judgment of a district court, which construed certain claims in a means-plus-function format and held those claims as indefinite under that construction; the third addresses subject matter jurisdiction; the fourth comes in a pro se case. One of the orders denies a petition to transfer a case; the other two orders are dismissals. Here are the introductions to the opinions, selected text from the order denying the petition, and links to the dismissals.

ABS Global, Inc. v. Cytonome/ST, LLC (Precedential Opinion)

Cytonome/ST, LLC owns U.S. Patent No. 10,583,439, which describes and claims a microfluidic device for use in processing particles of interest contained in a sample fluid.  ABS Global, Inc. and Genus plc (collectively, ABS) petitioned the Patent and Trademark Office (PTO) for an inter partes review, under 35 U.S.C. §§ 311–19, of the patentability of claims 1, 2, 6, 8, and 9 of the ’439 patent.  The PTO’s Patent Trial and Appeal Board, acting for the PTO’s Director, granted the petition.  After conducting the review, the Board determined that ABS had not shown any of the challenged claims to be unpatentable.  ABS Global, Inc. v. Cytonome/ST, LLC, No. IPR2021-00088, 2022 WL 1406461 (P.T.A.B. Apr. 28, 2022) (Final Written Decision).

ABS appeals.  We agree with ABS’s principal contention—that the Board erred in its claim construction of a limitation common to all challenged claims.  Having rejected the Board’s construction, we reverse the Board’s final written decision with respect to claims 1 and 8, vacate the decision with respect to claims 2, 6, and 9, and remand the matter to the Board.

Board of Supervisors of Issaquena County v. United States (Nonprecedential Opinion)

The Board of Supervisors of Issaquena County, Mississippi (the “Board”) sued the United States in the Court of Federal Claims (“Claims Court”), alleging that actions or inactions by the United States led to flooding in 2018 and 2019 that damaged the Board’s property, destroyed private property, and reduced economic activity, thereby depriving the county of tax revenue.  The Board sought compensation for the damage under the Takings Clause of the Fifth Amendment of the U.S. Constitution.  The Claims Court granted the government’s motion to dismiss, holding that the Board’s complaint failed to state a takings claim.  Although we hold that the Board’s complaint failed to state a claim, we will exercise our discretion to permit the Board to seek leave from the Claims Court to amend its complaint.  We therefore affirm in part and vacate and remand in part

WSOU Investments LLC v. Google LLC  (Nonprecedential Opinion)

WSOU Investments LLC, dba Brazos Licensing and Development (WSOU) appeals from a judgment of the U.S. District Court for the Western District of Texas that construed certain claim terms in U.S. Patent Nos. 8,965,045 and 9,335,825 in means-plus-function format and thus subject to 35 U.S.C. § 112 ¶ 6 and held those claims indefinite under that construction.  For the below reasons, we affirm the district court’s decision as to the ’045 patent, but reverse its decision as to the ’825 patent and remand for further proceedings.

Donnelly v. United States (Nonprecedential Opinion)

Gabriel Donnelly appeals the final decision of the United States Court of Federal Claims dismissing sua sponte his complaint for lack of subject matter jurisdiction pursuant to Rule 12(h)(3) of the Rules of the Court of Federal Claims (RCFC).  See Donnelly v. United States, 164 Fed. Cl. 603, 604 (2023).  We affirm because the trial court correctly concluded that it lacks subject matter jurisdiction over Mr. Donnelly’s claims.

Cosmic Crusaders LLC v. Andrusiek (Nonprecedential Opinion)

Appellants Cosmic Crusaders, LLC and Lewis Davidson (collectively, Appellants) appeal the final order of the Trademark Trial and Appeal Board (Board) granting the pro se petition of Respondent Laverne J. Andrusiek (Andrusiek) seeking cancellation of Appellants’ registration of the mark CAPTAIN CANNABIS for comic books.  Andrusiek v. Cosmic Crusaders LLC, Cancellation No. 92/064,830, 2022 WL 4103636, at *1 (T.T.A.B. Sept. 6, 2022) (Decision).

Appellants argue that the Board procedurally erred by considering Andrusiek’s allegedly unpled theory of priority (based on his own prior use of the same mark), and alternatively urge that substantial evidence does not support the Board’s finding that Andrusiek had priority over Appellants.  Because the Board did not abuse its discretion in construing Andrusiek’s petition, and because substantial evidence supports the Board’s findings regarding Andrusiek’s prior use, we affirm.

In re Sony Interactive Entertainment Inc. (Nonprecedential Order)

Sony Interactive Entertainment Inc. and Sony Interactive Entertainment LLC (collectively, “Sony”) petition for a writ of mandamus directing the United States District Court for the Western District of Texas (“WDTX”) to transfer the case to the United States District Court for the Northern District of California (“NDCal”).  ACQIS LLC opposes.  For the reasons that follow, we deny the petition.