This morning, the Federal Circuit released one precedential opinion and four nonprecedential orders. The precedential opinion rejects the argument the Patent Trial and Appeal Board failed to address several arguments made in two inter partes review proceedings. The court found no error in the how the Board understood the arguments at issue, but in a dissenting opinion Judge Dyk disagrees with the court. Two of the four orders are dismissals, while the other two transfer cases—one to a circuit court of appeals and another to a district court. Here is the introduction to the precedential opinion, selected text from the transfers, and links to the dismissals.
Netflix, Inc. v. DivX, LLC (Precedential Opinion)
Netflix, Inc. (Netflix) appeals two final written decisions of the Patent Trial and Appeal Board (Board) determining Netflix did not meet its burden of proving claims 15 and 12 of U.S. Patent No. 9,270,720 (’720 patent) and claims 1–6, 8–10, 13–14, 16–17, and 19 of U.S. Patent No. 9,998,515 (’515 patent) unpatentable under 35 U.S.C. § 103. See Hulu, LLC v. DivX, LLC, No. IPR2020-00647, 2021 WL 4859625 (P.T.A.B. Sept. 27, 2021) (’720 Patent Decision); Netflix, Inc. v. DivX, LLC, No. IPR 2021-00648, 2021 WL 4859708 (P.T.A.B. Sept. 27, 2021) (’515 Patent Decision). Each Board decision in these inter partes reviews (IPR) is lengthy, with the Board closely analyzing the arguments and evidence presented by Netflix and the patent owner DivX, LLC (DivX). Netflix’s appeal does not challenge any of the Board’s substantive analysis. It instead makes a purely procedural argument, accusing the Board of falling down on the job by failing to address several arguments purportedly raised in Netflix’s petitions. After marching through the relevant papers below, we see no error in how the Board understood Netflix’s petition arguments. Because all of Netflix’s arguments on appeal were not raised below, they are forfeited. We affirm.
DYK, Circuit Judge, dissenting.
Contrary to the majority, I think that the Board improperly ignored arguments that Netflix raised in its petition. In IPRs we are confronted with situations in which parties without basis argue that arguments were presented to and ignored by the Board, and equally with situations in which the Board ignores arguments that were properly preserved. In my view this case, at least in part, falls in the latter category, and the Board improperly declined to consider arguments that Netflix raised in its petition. I respectfully dissent from the majority’s contrary conclusion.
Justis v. Department of Agriculture (Nonprecedential Order)
Having considered the responses to this court’s July 27, 2023, order to show cause, we now transfer the case to the United States District Court for the Eastern District of Pennsylvania.
Frazier v. Marlin, TX (Nonprecedential Order)
Having received no response to the court’s July 12, 2023, order to show cause, we now transfer.
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IT IS ORDERED THAT:
This appeal and all transmittals are transferred to the United States Court of Appeals for the Fifth Circuit pursuant to 28 U.S.C. § 1631.