The Federal Circuit has been busy. This morning it released two precedential opinions and seven nonprecedential orders. One of the precedential opinions comes in a patent case and reverses in part final written decisions of the Patent Trial and Appeal Board. The other precedential opinion comes in a veterans case and affirms dismissal of veterans’ petitions for writs of mandamus. The nonprecedential orders do various things in various cases: deny a motion for permission to appeal, dismiss a petition for review, grant a motion to remand a trademark case back to the Trademark Trial and Appeal Board, grant a motion to transfer a case, dismiss a petition for review as premature, grant a petition by the Director of the Office of Personnel Management for review of a final order of the Merit Systems Protection Board, and grant a motion for summary affirmance. Late yesterday, the Feddral Circuit also released another nonprecedential order dismissing an appeal. Here are the introductions to the opinions and orders, other than the dismissal, which is only linked.
IOEngine, LLC v. Ingenico Inc. (Precedential)
Appellant IOENGINE, LLC (IOENGINE) appeals a series of Final Written Decisions of the United States Patent and Trademark Office’s Patent Trial and Appeal Board (Board) finding unpatentable certain claims of U.S. Patent Nos. 8,539,047 (’047 patent), 9,059,969 (’969 patent), and 9,774,703 (’703 patent) (collectively, the Challenged Patents) during inter partes review (IPR). The Board determined claims 1–21, 23–25, 27, and 28 of the ’047 patent, claims 1, 2, 4–8, 13–16, 19–21, 24, 25, and 27–29 of the ’969 patent, and claims 55, 57–63, 67–72, 74, 77, 78, 81–87, 89, 92–98, 100, 103, 104, 106–112, 116–121, 123, and 126–129 of the ’703 patent to be unpatentable. We reverse the Board’s unpatentability determinations as to claims 4 and 7 of the ’969 patent and claims 61–62 and 110–11 of the ’703 patent because the Board erred in its application of the printed matter doctrine. We affirm the Board’s unpatentability determinations as to all other claims.
Love v. McDonough (Precedential)
Four veterans in three separate cases appeal from judgments of the United States Court of Appeals for Veterans Claims (“Veterans Court”) dismissing the veterans’ petitions for writs of mandamus for lack of jurisdiction. We previously consolidated two cases, Love v. McDonough, No. 22-2285, and Aumiller v. McDonough, No. 22-2296, and the Love case and Lindgren v. McDonough, No. 23-1135, were argued together. Because there is an alternative remedy by appeal, we affirm.
On24, Inc. v. Webinar.net, Inc. (Nonprecedential Order)
ON24, Inc. petitions for permission to appeal an interlocutory order of the United States District Court for the Northern District of California granting partial summary judgment, which the district court certified pursuant to 28 U.S.C. § 1292(b).
Under § 1292(b), a district court may certify that an order that is not otherwise appealable is one involving a controlling question of law as to which there is substantial ground for difference of opinion and for which an immediate appeal may materially advance the ultimate termination of the litigation. Ultimately, this court must exercise its own discretion in deciding whether to grant permission to appeal an interlocutory order. See In re Convertible Rowing Exerciser Pat. Litig., 903 F.2d 822, 822 (Fed. Cir. 1990). In this case, we conclude that an interlocutory appeal under § 1292(b) is not appropriate.
Accordingly,
IT IS ORDERED THAT:
The petition for permission to appeal is denied.
Jones v. Department of Veterans Affairs (Nonprecedential Order)
In response to this court’s show cause order, the respondent urges dismissal of this petition for review. Vickie L. Jones submits a “brief summary of [her] complaint” regarding the “review of [her] case.” ECF No. 15 at 1–2.
Ms. Jones filed an Individual Right of Action appeal with the Merit Systems Protection Board. Due to the upgrade of the Board’s network and e-Appeal filing system, the administrative judge, with agreement by the parties, issued an initial decision on August 24, 2023, dismissing the case without prejudice for a period of 60 days, subject to automatic refiling by the Board. Ms. Jones filed a petition for review from that decision, even though her Board appeal was refiled, docketed as PH-1221-23-0055-W-2, and is pending with the administrative judge.
This court only has jurisdiction to review final decisions and orders from the Board. See 28 U.S.C. § 1295(a)(9); Weed v. Soc. Sec. Admin., 571 F.3d 1359, 1361 (Fed. Cir. 2009). The administrative judge’s decision, merely dismissing Ms. Jones’s appeal without prejudice subject to automatic reinstatement, is not final. See Strausbaugh v. Merit Sys. Prot. Bd., 401 F. App’x 524, 526 (Fed. Cir. 2010). Because there is no final order or decision from the Board, this court lacks jurisdiction and must dismiss. Ms. Jones may petition this court for review after issuance of a final decision.
Accordingly,
IT IS ORDERED THAT:
(1) The petition for review is dismissed.
(2) Each side shall bear its own costs.
iFIT Inc. v. Vidal (Nonprecedential Order)
iFIT Inc. has filed its opening brief challenging the Trademark Trial and Appeal Board’s dismissal of its opposition to registration of ERB Industries, Inc.’s (“ERB”) trademark. The Director of the United States Patent and Trademark Office now moves to waive Federal Circuit Rule 27(f) and remand for further proceedings. iFIT opposes.
An agency may properly request a remand to reconsider its previous position. SKF USA Inc. v. United States, 254 F.3d 1022, 1029 (Fed. Cir. 2001). In such cases, remand is usually appropriate if the agency expresses a “substantial and legitimate” concern about its earlier decision or it wishes to reconsider its decision in light of a new legal decision. Id. Here, the Director raises legitimate concerns about the Board’s findings on the relatedness between ERB’s goods and iFIT’s services and also wishes to reconsider the decision in light of Naterra International, Inc. v. Bensalem, 92 F.4th 1113, 1119 (Fed. Cir. 2024). The Director further notes that on remand the Board will “address all of Appellant’s alleged deficiencies.” Reply at 3. We agree with the Director that remanding now is the better course of action, as it will preserve judicial resources and may simplify the issues for any future appeal.
Accordingly,
IT IS ORDERED THAT:
(1) The Director’s motion is granted. The case is remanded to the Trademark Trial and Appeal Board for further proceedings consistent with the motion and this order.
(2) Each side to bear its own costs.
Dubose v. United States (Nonprecedential Order)
In response to this court’s March 15, 2024 show cause order, the United States urges dismissal while Zumar H. DuBose moves for transfer to the United States Court of Appeals for the Third Circuit.
Mr. DuBose brought suit against the United States in the United States District Court for the Eastern District of Pennsylvania, seeking $100,000,000 “pursuant to the Federal Tort Claims Act 28 U.S.C. § 1346(b).” Compl. at 1. The district court dismissed, and Mr. DuBose appealed to this court.
We do not have jurisdiction over Mr. DuBose’s “appeal in a case brought in a district court under . . . [28 U.S.C. §] 1346(b),” which instead belongs in the appropriate regional circuit court of appeals. 28 U.S.C. § 1295(a)(2). Under the circumstances, we conclude that transfer to the Third Circuit is appropriate under 28 U.S.C. § 1631. See 28 U.S.C. §§ 41, 1291, 1294.
Accordingly,
IT IS ORDERED THAT:
The motion to transfer is granted. The appeal and all its filings are transferred to the United States Court of Appeals for the Third Circuit pursuant to 28 U.S.C. § 1631.
Clark v. Merit Systems Protection Board (Nonprecedential Order)
In response to this court’s March 15, 2024 show cause order, the Merit Systems Protection Board urges dismissal while Heather Clark urges the court to “remand” “for proper due process, with a new judge” because her case has been “unlawful[ly] stay[ed],” ECF No. 16 at 3, 5.
Ms. Clark filed a whistleblower individual right of action appeal with the Board on October 17, 2023. On February 13, 2024, the administrative judge issued an order denying Ms. Clark’s motion to dismiss based on alleged judicial misconduct, directing the parties by the end of that month to address whether Ms. Clark’s resignation was voluntary, and to caution Ms. Clark against sending inappropriate communications to the Board. ECF No. 18 at 24. Ms. Clark appears to seek this court’s review of that order.
This court’s jurisdiction is limited to “an appeal from a final order or final decision of the . . . Board.” 28 U.S.C. § 1295(a)(9). “[A]n order is final only when it ends the litigation on the merits and leaves nothing for the [tribunal] to do but execute the judgment.” Weed v. Soc. Sec. Admin., 571 F.3d 1359, 1361 (Fed. Cir. 2009) (cleaned up). Here, the Board has not finally resolved Ms. Clark’s appeal. Ms. Clark’s reliance on Rule 54(b) of the Federal Rules of Civil Procedure is unavailing because that rule does not apply to the Board, see Fed. R. Civ. P. 1 (noting the rules apply to federal district courts), and, in any event, the February 13, 2024 order did not resolve any claims and was not certified by the administrative judge for immediate appeal to the Board. Thus, there has been no final, appealable decision or order. If necessary, Ms. Clark may seek this court’s review of her case and arguments of error(s) after the Board issues a final decision or order in her proceedings.
Accordingly,
IT IS ORDERED THAT:
(1) The petition for review is dismissed as premature.
(2) Each side shall bear its own costs.
Office of Personnel Management v. Moulton (Nonprecedential Order)
The Director of the Office of Personnel Management (“OPM”) petitions for review of a final order of the Merit Systems Protection Board pursuant to 5 U.S.C. § 7703(d). Specifically, OPM seeks review of the Board’s decision that the governing statute, 5 U.S.C. § 8421(c), authorizes apportionment of a retirement annuity supplement only when the terms of a court order expressly provide for division of the supplement. The Board does not oppose the petition. Ronald L. Moulton and Jill Moulton did not respond.
Pursuant to 5 U.S.C. § 7703(d), this court has “discretion” whether to permit OPM’s petition for review of a Board decision when OPM determines that “the Board erred in interpreting a civil service law, rule, or regulation affecting personnel management and that the Board’s decision will have a substantial impact on a civil service law, rule, regulation, or policy directive.”1 We conclude that OPM’s petition should be permitted here. We note that Mrs. Moulton passed away after the Board issued its decision.2 Any personal representative or attorney for Mrs. Moulton’s estate who intends to participate on appeal must file a motion for leave to intervene.
Accordingly,
IT IS ORDERED THAT:
(1) OPM’s petition is granted. This case is transferred to the regular docket. OPM’s opening brief is due within 60 days of the date of entry of this order.
(2) Absent objection within 30 days of the date of entry of this order, the official caption will be revised to remove Jill Moulton as a respondent in the case. Any personal representative or attorney for Mrs. Moulton’s estate intending to participate on appeal must file a motion for leave to intervene within that time.
Hirschfield v. United States (Nonprecedential Order)
The United States moves to summarily affirm the judgment of the United States Court of Federal Claims dismissing Danny Joe Hirschfield, I’s complaint. Mr. Hirschfield has not responded to the motion.
* * *
We thus agree that summary disposition is appropriate here because there is no “substantial question regarding the outcome” of the appeal. Joshua v. United States, 17 F.3d 378, 380 (Fed. Cir. 1994) (citation omitted).
Accordingly,
IT IS ORDERED THAT:
(1) The United States’s motion for summary affirmance is granted, and the judgment of the United States Court of Federal Claims is affirmed.
(2) Each side shall bear its own costs.