Late yesterday, the Federal Circuit released two nonprecedential orders dismissing appeals from the Merit Systems Protection Board. This morning, the court released one precedential opinion in a patent case, transferring it to the Court of Appeals for the Second Circuit. The Federal Circuit also released three nonprecedential opinions in decisions appealed from the MSPB, the Patent Trial and Appeal Board, and the Court of Appeals for Veterans Claims. Here are the introductions to the opinions and links to the dismissals.
Acorda Therapeutics, Inc.. v. Alkermes PLC (Precedential)
Acorda is the developer of Ampyra®, a drug used to treat patients with multiple sclerosis. Until 2018, Alkermes owned a patent covering Amprya’s active ingredient. Alkermes licensed the patent to Acorda in return for royalty payments and contracted to supply Acorda with the active ingredient in return for royalty payments. In July 2018, the licensed patent expired, but Acorda continued to make royalty payments—without protest until July 2020 and thereafter under protest.
Acorda initiated an international arbitration, pursuant to the parties’ agreement, in July 2020. It sought (a) a judgment that, when the patent expired, the royalty provisions became unenforceable under federal law based on Brulotte v. Thys Co., 379 U.S. 29, 30–34 (1964); see also Kimble v. Marvel Entertainment, LLC, 576 U.S. 446, 449, 458–60 (2015) (declining to overrule Brulotte), and (b) recoupment of royalties paid since July 2018. The arbitration tribunal (Tribunal) agreed that the provisions were unenforceable but concluded that Acorda was entitled to recoup only payments made under formal protest. Amended Findings of Fact, Conclusions of Law, and Final Reasoned Award, Acorda Therapeutics, Inc. v. Alkermes PLC, Arbitration No. 01-20-0010-8421 (Am. Arb. Assoc. Int’l Ctr. Disp. Resol. Apr. 11, 2022) (Award); J.A. 33–55. Acorda filed the legal action now before us by petitioning the United States District Court for the Southern District of New York to confirm all the Tribunal’s rulings except for the denial of recoupment of the unprotested 2018–2020 payments, which Acorda sought to modify on the ground that the Tribunal acted in “manifest disregard” of federal patent law and a non-patent-law principle of law. Alkermes disputed the modification request only. The district court rejected Acorda’s manifest-disregard arguments and confirmed the award in full. Acorda Therapeutics, Inc. v. Alkermes PLC, No. 23-cv-223, 2023 WL 5003767, at *1 (S.D.N.Y. Aug. 4, 2023) (Decision); J.A. 1–20.
Acorda appealed, asserting that this circuit has appellate jurisdiction over the appeal and should reverse the district court’s denial of the 2018–2020 recoupment it sought. We conclude that Acorda’s petition to modify the arbitral award on the ground that the arbitration panel manifestly disregarded the law is not within our jurisdiction under 28 U.S.C. § 1295(a)(1). We therefore transfer the case to the United States Court of Appeals for the Second Circuit.
Arellanes v. Department of Defense (Nonprecedential)
Ralph D. Arellanes petitions for review of a Merit Systems Protection Board (“Board”) final order, which denied his petition for review and affirmed the administrative judge’s compliance initial decision. Arellanes v. Dep’t of Def., No. DE-0752-15-0021-C-1, 2023 WL 2137362, at *1 (M.S.P.B. Feb. 21, 2023) (“Final Order”). For the reasons discussed below, we vacate and remand.
Clark v. Docusign, Inc. (Nonprecedential)
In three inter partes review (“IPR”) proceedings, the Patent Trial and Appeal Board (“Board”) determined that claim 1 of U.S. Patent No. 8,695,066 (the “’066 patent”), claims 1–3 of U.S. Patent No. 9,391,957 (the “’957 patent”), and claim 1 of U.S. Patent No. 10,129,214 (the “’214 patent”) were unpatentable as obvious. J.A. 1–91. Dr. Paul C. Clark, owner of the challenged patents, seeks to overturn the Board’s decisions in all three IPRs. For the following reasons, we affirm.
Evans v. Collins (Nonprecedential)
Joshua Evans appeals a decision of the United States Court of Appeals for Veterans Claims (“the Veterans Court”) affirming a decision of the Board of Veterans’ Appeals (“the Board”). Evans v. McDonough, No. 21-1242, 2023 WL 3671133 (Vet. App. May 26, 2023); J.A. 19–23 (Board Decision). On appeal to this court, Evans principally argues that the Veterans Court erred in affirming the Board’s decision that he did not implicitly raise an earlier claim for total disability due to unemployability (“TDIU”) under Rice v. Shinseki, 22 Vet. App. 447 (2009). We lack jurisdiction over this issue because it involves the application of the legal standard stated in Rice to the facts of this case. 38 U.S.C. § 7292(d)(2) (providing that we lack jurisdiction over “a challenge to a law or regulation as applied to the facts of a particular case”). We therefore dismiss.