This morning, the Federal Circuit released one precedential opinion, one nonprecedential opinion, and one nonprecedential order. The precedential opinion addresses a challenge to a claim construction order in a patent case. The nonprecedential opinion reviews a judgment of the Merit Systems Protection Board relating to alleged retaliatory action for whistleblowing, and the court’s judgment sparked a vigorous dissent by Judge Newman. Finally, the order is a dismissal. Here are the introductions to the opinions and a link to the dismissal.

Malvern Panalytical Inc. v. TA Instruments-Waters LLC (Precedential Opinion)

Malvern Panalytical Inc. (“Malvern”) appeals a claim construction order construing the term “pipette guiding mechanism” in the patents-in-suit as a “mechanism that manually guides the pipette assembly.”  Malvern Panalytical Inc. v. TA Instruments-Waters LLC, No. 19-cv-2157, 2021 WL 965684, at *3–6 (D. Del. Mar. 15, 2021) (“Decision”).  Because the district court erred in construing “pipette guiding mechanism,” we vacate the stipulated judgment of non-infringement and remand for further proceedings.

Phan v. Department of Health and Human Services (Nonprecedential Opinion)

Vinh Phan appeals from a decision of the Merit Systems Protection Board (“Board”) denying a request for relief in an Individual Right of Action appeal that asserted retaliatory agency action for alleged whistleblowing activity.  Phan v. Dep’t of Health & Hum. Servs., 2022 WL 509255 (M.S.P.B. Feb. 14, 2022) (“Decision”), R.A. 6–33.

For the following reasons, we affirm in part and vacate and remand in part.

NEWMAN, Circuit Judge, dissenting.

On this appeal from the Merit Systems Protection Board (MSPB or “Board”) the Board did not decide the only issue that was appealed to it (the issue of retaliation), but instead decided a subject that was not disputed by either party (whether there was a whistleblowing disclosure).  The panel majority accepts this flawed procedure.  I respectfully dissent, for sound administrative practice requires that “[t]he grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based.” Securities & Exch. Comm’n v. Chenery Corp., 318 U.S. 80, 87 (1943).  The action before the agency and the Office of Special Counsel was based solely on Mr. Phan’s assertion of retaliation.

In addition, the Board applied incorrect law in reaching its decision.  The government does not defend the Board’s substantive and procedural errors and relies solely on its challenge to the MSPB’s jurisdiction.  Although the panel majority recognizes that the Board’s disposition is flawed, these errors of law and procedure must also be corrected.  More is required of appellate review, than a general remand to check a parenthetical.