Late yesterday, the Federal Circuit released a precedential opinion in an en banc case appealed from the Western District of Texas. Notably, Judges Reyna and Stark concurred in part and dissented in part. Today, the Federal Circuit released a precedential opinion in a trademark case. The court also released three nonprecedential opinions affirming judgments, the first in a veterans case, the second in a patent case, and the third in an appeal from the Armed Services Board of Contract Appeals. The Federal Circuit also released one nonprecedential order dismissing an appeal. Here are the introductions to the opinions and a link to the dismissal.
Ecofactor, Inc. v. Google LLC (Precedential En Banc Opinion)
Relevant to this en banc proceeding, Google LLC (Google) appeals an order from the United States District Court for the Western District of Texas denying Google’s motion for a new trial on damages. We reverse the district court’s denial of Google’s motion and remand for a new trial on damages.
Google also appeals the district court’s denial of its motion for summary judgment of invalidity under 35 U.S.C. § 101 and denial of its motion for judgment as a matter of law (JMOL) of noninfringement. On June 3, 2024, a panel of this court affirmed the denial of JMOL and denial of a new trial and held the denial of summary judgment was not appealable. We reinstate the panel opinion as to the issues other than damages.
Reyna, Circuit Judge, concurring-in-part and dissenting-in-part
From the outset, this appeal has been about whether the district court abused its discretion by admitting EcoFactor’s expert opinion on damages and denying Google’s motion for a new trial. On September 25, 2024, we issued an order that limited the parties’ briefing and argument to “the district court’s adherence to Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), in its allowance of testimony from EcoFactor’s damages expert assigning a per-unit royalty rate to the three licenses in evidence in this case.”
But now, the en banc court abandons the scope of this proceeding that we officially set. The en banc court does speak to Rule 702 and Daubert, but only when reciting well-known law. The crux of its analysis focuses exclusively on its new theory that this case is about contract interpretation as a question of law.
The en banc court’s sudden shift deprives EcoFactor of notice and an opportunity to be heard, and avoids what this appeal is really about, i.e., the extent to which district courts have discretion to decide fact-based questions of admissibility under Rule 702 and Daubert. And after only finding fault with a narrow point of Mr. Kennedy’s testimony on contract interpretation grounds, the en banc court appears to inexplicably rule that Mr. Kennedy’s entire testimony should have been excluded.
Most extraordinarily, the en banc court’s new theory is not dispositive to the disposition of this case. Assuming that the en banc court’s conclusion on contract interpretation is correct, Fifth Circuit law requires us to affirm under the harmless error doctrine. The en banc court’s one conclusory paragraph on this issue states that Mr. Kennedy’s testimony “was undoubtedly prejudicial” without providing any explanation why it was an abuse of discretion for the district court to rule otherwise. This may prove to be the most consequential step the en banc court takes because, under its logic, even when improperly admitted evidence is wholly duplicative of properly admitted evidence, the district court has no discretion but to decide that the erroneous admission was per se prejudicial. This is not the correct standard under Fifth Circuit law for vacating a jury verdict.
For the following reasons, I respectfully dissent. This dissent is divided into two parts. In the first part, I address the admissibility of Mr. Kennedy’s expert opinion and the en banc court’s departure from the question at hand. In the second part, I address the en banc court’s failure to conduct any meaningful harmless error analysis.
Stark, Circuit Judge, concurring-in-part and dissenting-in-part
As both the Majority and Judge Reyna observe, see Majority Opinion at 4-5; Reyna Dissent at 1-3, we granted en banc review to “address[] the district court’s adherence to Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).” En Banc Order, ECF No. 76 at 2. Surprisingly, however, the Majority Opinion has very little to say about Rule 702 and Daubert. On these topics, I read the Majority’s holding as so narrow as to have almost no applicability beyond this case.
Nevertheless, because this is our first en banc review of a utility patent case in years, I am concerned that today’s opinion will be misinterpreted as constraining damages experts in a manner not called for by either Rule 702 or Daubert. I fear, too, that the Majority may be misunderstood as inviting district judges, and future panels of this court, to resolve fact disputes under the guise of evaluating whether experts may testify at trial.
Lastly, while I share the Majority’s frustration with the district court’s failure to create a better record for review, I do not agree that this deficiency is an abuse of discretion warranting reversal. If any remedy is required, it should be to vacate and remand for a better explanation from the district judge, not order him to conduct a new trial.
I explain these three points, and why I believe we should affirm the district court, in more detail below.
Curtin v. United Trademark Holdings, Inc. (Precedential)
Rebecca Curtin filed an opposition under 15 U.S.C. § 1063 to United Trademark Holdings’ registration of the mark RAPUNZEL in International Class 28, which covers dolls and toy figures. The Trademark Trial and Appeal Board dismissed her opposition after concluding she was not statutorily entitled to oppose a registration under § 1063. Because the Board properly applied the Lexmark framework to conclude that Ms. Curtin was not entitled to bring her opposition under § 1063, we affirm.
O’Banion v. Collins (Nonprecedential)
Sandra O’Banion appeals from a final decision of the U.S. Court of Appeals for Veterans Claims denying an earlier effective date for service-connected lung cancer. For the reasons set forth below, we affirm.
Uniqure Biopharma B.V. v. Pfizer Inc. (Nonprecedential)
Appellant uniQure Biopharma B.V. (“uniQure”) appeals from Final Written Decisions (“FWD”) of the Patent Trademark and Appeal Board (“Board”) finding that all challenged claims of uniQure’s U.S. Patent Nos. 9,982,248 (“’248 patent”) and 10,465,180 (“’180 patent”) are unpatentable. Because the Board did not commit any legal error and its factual findings are supported by substantial evidence, we affirm.
Sheffield Korte Joint Venture v. Secretary of the Army (Nonprecedential)
Sheffield Korte Joint Venture (Sheffield) appeals from a summary judgment decision of the Armed Services Board of Contract Appeals (Board), which denied Sheffield’s request for an equitable adjustment and granted the U.S. Army Corps of Engineers’ (Corps) request for repayment of improperly issued funds. We affirm.