This morning, the Federal Circuit released three precedential opinions, four nonprecedential opinions, one summary affirmance, and one nonprecedential order. Of the precedential opinions, two come in patent cases and the other comes in a veterans case. Of the nonprecedential opinions, two come in appeals from the Merit Systems Protection Board, one comes in a veterans case, and one comes in a trade case. The lone nonprecedential order dismisses an appeal. Here are the introductions to the opinions and a link to the summary affirmance and dismissal.
Immunogen, Inc. v. Stewart (Precedential)
This case, arising from a civil action to obtain a patent under 35 U.S.C. § 145, returns to this court following a remand in ImmunoGen, Inc. v. Hirshfeld, No. 2021-1939, 2022 WL 885774 (Fed. Cir. Mar. 25, 2022) (“ImmunoGen II”). Following vacatur of the district court’s grant of summary judgment in favor of the government, the case proceeded to a bench trial on the question whether ImmunoGen, Inc. is entitled to a patent for the invention claimed in U.S. Patent Application 14/509,809 (“the ’809 application”). Determining that the claims of the application are “fatally indefinite and obvious,” and that the claims are unpatentable under the doctrine of obviousnesstype double patenting, the district court entered judgment in favor of the government, denying ImmunoGen’s claim for entitlement to a patent. ImmunoGen, Inc. v. Vidal, 653 F. Supp. 3d 258, 307 (E.D. Va. 2023) (“Decision”). We affirm.
Military-Veterans Advocacy v. Secretary of Veterans Affairs (Precedential)
Military-Veterans Advocacy (MVA) filed a petition for review pursuant to 38 U.S.C. § 502, challenging Individuals Using the Department of Veterans Affairs’ Information Technology Systems to Access Records Relevant to a Benefit Claim, 87 Fed. Reg. 121, 37744 (June 24, 2022) (Final Rule). Specifically, MVA challenges the validity of 38 C.F.R. § 1.601(a)(2), which requires users of Veterans Affairs’ (VA) Information Technology (IT) systems to potentially pass “a background suitability investigation” (the Background Check Provision), and 38 C.F.R. § 1.602(c)(1), which permits the VA to, “at any time without notice,” “inspect the computer hardware and software utilized to obtain access to VA IT systems and their location” (the Inspection Provision). Because we hold the VA has authority to promulgate the Background Check Provision, but not the Inspection Provision, we grant-in-part and deny-in-part the petition and set aside 38 C.F.R. § 1.602(c)(1) of the Final Rule.
Odyssey Logistics & Technology Corp. v. Stewart (Precedential)
On February 7, 2020, this court affirmed a 2018 decision by the Patent Trial and Appeal Board (“Board” or “PTAB”), which in turn affirmed the examiner’s rejection of claims 3–21 of U.S. Patent Application No. 11/678,021 (the “’021 application”). In re Tarasenko, 792 F. App’x 840 (Fed. Cir. 2020). Patent applicant Odyssey Logistics & Technology Corporation (“Odyssey”) did not raise an Appointments Clause challenge on appeal in Tarasenko. Odyssey’s constitutional challenge came more than a year later, after the Supreme Court issued its decision in United States v. Arthrex, Inc., 594 U.S. 1 (2021), on June 21, 2021.
On June 28, 2021, Odyssey filed a request for review by the Director of the United States Patent and Trademark Office (“PTO”) of the Board’s 2018 decision on the ground that the Board’s decision was invalid under Arthrex, claiming entitlement to Director review as a remedy. After the PTO denied the request for Director review, Odyssey filed a complaint in district court requesting that the district court compel the Director to consider Odyssey’s request. The district court granted the PTO’s motion to dismiss, and Odyssey appealed. We affirm.
Akerman v. Merit Systems Protection Board (Nonprecedential)
Martin Akerman appeals from a decision of the Merit Systems Protection Board (“the Board”) dismissing his appeal for lack of jurisdiction. Akerman v. Dep’t of the Army, No. DC-1221-22-0459-W-1, 2024 WL 2783100 (M.S.P.B. May 29, 2024) (“Decision”). For the following reasons, we affirm.
Johns v. Merit Systems Protection Board (Nonprecedential)
After receiving a negative performance appraisal from his supervisor at the U.S. Department of Veterans Affairs (VA), Delon Johns appealed to the Merit Systems Protection Board (Board). As part of his appeal, Mr. Johns noted that he had filed a whistleblower complaint with the U.S. Office of Special Counsel (OSC). Because a negative performance appraisal is not an “action” within the Board’s jurisdiction under 5 U.S.C. § 7512, the assigned Board administrative judge ordered Mr. Johns to demonstrate that his appeal was within the Board’s jurisdiction and, specifically, to demonstrate that he had exhausted his administrative remedies with OSC if he was invoking an individual right of action as the vehicle for Board adjudication of his whistleblower allegation, see 5 U.S.C. § 1214(a)(3). Eventually, the administrative judge concluded that Mr. Johns had not shown OSC exhaustion and, on that basis, dismissed the appeal for lack of jurisdiction. The full Board affirmed that initial decision, which became the Board’s decision. We now affirm the Board’s decision.
Nyepah v. Collins (Nonprecedential)
Appellant Menshack Nyepah, a veteran, appeals from an order of the United States Court of Veterans Claims (“the Veterans Court”) denying his request for the appointment of counsel to assist him in prosecuting claims relating to disability compensation.
Vandewater International Inc. v. United States (Nonprecedential)
Appellants, Smith-Cooper International, Inc. and Sigma Corporation, appeal the final judgment of the U.S. Court of International Trade, which affirmed the U.S. Department of Commerce’s determination that steel branch outlets imported by Vandewater International Inc. fall within the scope of an antidumping duty order for “buttweld pipe fittings.” We affirm.