This morning, the Federal Circuit released five nonprecedential opinions and four nonprecedential orders. Two opinions address appeals from inter partes reexaminations before the Patent Trial and Appeal Board. Each of those appeals had a corresponding related appeal, which was subsequently dismissed as moot in a corresponding nonprecedential opinion. Finally, the fifth nonprecedential opinion addresses an appeal regarding veterans’ disability benefits. The first nonprecedential order summarily affirms a judgment, another transfers an appeal to a district court, and the final two are dismissals. Late yesterday, the Federal Circuit also released one nonprecedential order dismissing appeals from the Patent Trial and Appeal Board. Here are the introductions to the opinions, text from the orders, and links to the dismissals.
VirnetX Inc. v. Apple Inc. (Nonprecedential Opinion)
In this appeal from an inter partes reexamination proceeding before the Patent Trial and Appeal Board, the appellant VirnetX Inc. challenges the Board’s decision holding that several claims of VirnetX’s U.S. Patent No. 6,502,135 (“the ’135 patent”) are invalid. We affirm.
VirnetX Inc. v. Cisco Systems, Inc. (Nonprecedential Opinion)
Appellant VirnetX Inc. seeks review of a decision of the Patent Trial and Appeal Board holding that various claims of VirnetX’s U.S. Patent No. 6,502,135 are invalid for obviousness and anticipation.
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We have today affirmed the Board’s decision in the copending Apple appeal. This case is therefore moot, and the appeal will be dismissed.
VirnetX Inc. v. Cisco Systems, Inc. (Nonprecedential Opinion)
This patent appeal relates to an inter partes reexamination of U.S. Patent No. 7,418,504 (’504 patent) owned by VirnetX Inc. (VirnetX). In VirnetX Inc. v. Cisco Systems, Inc., we vacated the Patent Trial and Appeal Board’s (Board) initial decision affirming an Examiner’s rejection of dependent claims 5, 12, and 13 and remanded to the Board with instructions to “consider whether the Lendenmann reference discloses the use of its [remote procedure call (RPC)] mode of communication for communications between a user and the [Cell Directory Service (CDS)] as found by the Examiner.” 776 F. App’x 698, 704 (Fed. Cir. 2019) (footnote added) (VirnetX I). On remand, the Board rejected claims 5, 12, and 13 again and denied rehearing. Cisco Sys. Inc. v. VirnetX Inc., Reexamination No. 95/001,851, Appeal No. 2017-010954, 2022 WL 909849, at *4 (P.T.A.B. Mar. 24, 2022) (Board Decision); Cisco Sys. Inc. v. VirnetX Inc., Reexamination No. 95/001,851, Appeal No. 2017-010954, 2022 WL 2866398, at *3–4 (P.T.A.B. July 19, 2022) (Decision on Rehearing). VirnetX appeals. Because the Board supported its reasoning with substantial evidence, adequately explained its reasoning, and adequately responded to VirnetX’s arguments, we affirm.
VirnetX Inc v. Vidal (Nonprecedential Opinion)
Appellant VirnetX Inc. (VirnetX) seeks review of a decision of the Patent Trial and Appeal Board (Board) holding that claims 1–2, 5–6, 15–16, 27, 33, 36–37, 39–40, 51, 57, and 60 of VirnetX’s U.S. Patent No. 7,418,504 (’504 patent) are unpatentable. VirnetX challenges the Board’s determination that dependent claim 5 is unpatentable and argues that the Board’s decision as to the other claims are moot in view of our affirmance of rejections of claims 36–37, 39–40, 51, 57, and 60 in VirnetX Inc. v. Apple Inc., 931 F.3d 1363 (Fed. Cir. 2019) and our affirmance of rejections of claims 1–2, 6, 15–16, 27, and 33 in VirnetX Inc. v. Cisco Systems, Inc., 776 F. App’x 698 (Fed. Cir. 2019). At oral argument, counsel for VirnetX further acknowledged that if we affirm in VirnetX Inc. v. Cisco Systems, Inc., No. 22-2234, argued the same day as this case, this case would be entirely moot.
We have today affirmed the Board’s decision in the copending Cisco appeal. See VirnetX Inc. v. Cisco Systems, Inc., No. 22-2234, slip op. 7, ––– F. App’x –––, ––– (Fed. Cir. Oct. 20, 2023). This case is therefore moot, and the appeal will be dismissed. We decline to vacate the Board’s decision in this case as part of our judgment dismissing this appeal, as VirnetX has not offered any reason as to why the unreviewed Board decision would require the discretionary remedy of vacatur. See U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18 (1994); Apple Inc. v. Qualcomm Inc., 17 F.4th 1131, 1137 (Fed. Cir. 2021); see also LSI Corp. v. U.S. Int’l Trade Comm’n, 604 F. App’x 924, 930 (Fed. Cir. 2015) (noting that the decision whether to vacate a judgment when the case becomes moot by happenstance while on appeal is a matter “not of constitutional necessity but of remedial discretion”).
Castro v. McDonough (Nonprecedential Opinion)
Albert F. Castro, Jr. appeals a decision of the United States Court of Appeals for Veterans Claims setting aside the Board of Veterans Appeals’ finding that a previous October 2015 Board decision became final and otherwise affirming the Board’s denial of an earlier effective date for the award of disability benefits. For the following reasons, we dismiss in part and affirm in part.
Francis v. United States (Nonprecedential Order)
Addisa Jahrusalem Francis’s submissions before this court seek various relief, including leave to proceed in forma pauperis, ECF Nos. 3 and 7, to compel the Clerk of this Court to take certain actions, ECF No. 8, a temporary injunction, ECF No. 10, and a “writ of prohibition,” ECF No. 4-1, pg. 6. The United States responds and moves for summary affirmance. ECF No. 11. Ms. Francis replies.
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Accordingly,
IT IS ORDERED THAT:
(1) ECF No. 11 is granted to the extent that the judgment of the United States Court of Federal Claims is summarily affirmed.
(2) The petition and all other pending motions are denied.
(3) Each side shall bear its own costs.
Goodman v. Department of Labor (Nonprecedential Order)
The Department of Labor moves to waive Federal Circuit Rule 27(f) and to dismiss Erika Goodman’s petition for review as untimely. Ms. Goodman opposes. We agree that this court lacks jurisdiction, albeit on a different basis, and we conclude that transfer to the United States District Court for the Northern District of Illinois is appropriate.
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IT IS ORDERED THAT:
The motion to waive Federal Circuit Rule 27(f) and to dismiss is granted to the extent that this case and all filings are transferred to the United States District Court for the Northern District of Illinois pursuant to 28 U.S.C. § 1631.