Late on Friday the Federal Circuit issued two precedential orders in patent cases and one nonprecedential order in a patent case. These orders represent the immediate fall out from the Federal Circuit’s opinion late on Thursday in Arthrex, Inc. v. Smith & Nephew, Inc. that the Secretary of Commerce’s appointment of Administrative Patent Judges to the Patent Trial and Appeal Board violates the Appointments Clause of the U.S. Constitution. (You can find this blog’s report on that decision here.) On Friday, the Federal Circuit ruled in two cases that the appellants forfeited this same challenge by not raising it in their opening briefs, but instead only in a post-briefing motion or notice of supplemental authority. In the third case, the court canceled this week’s oral argument, vacated the PTAB’s decision, and remanded the case because the appellant did raise the Appointments Clause challenge in its opening brief. Here is the text of the orders.
Customedia Technologies, LLC v. Dish Network Corp. (Precedential Order)
Customedia Technologies, LLC moves to vacate and remand in light of this court’s recent decision in Arthrex, Inc. v. Smith & Nephew, Inc., No. 2018-2140 (Fed. Cir. Oct. 31, 2019). That decision vacated and remanded for the matter to be decided by a new panel of Administrative Patent Judges (“APJs”) at the Patent Trial and Appeal Board after this court concluded that the APJs’ appointments violated the Appointments Clause. Customedia’s motion seeks to assert the same challenge here.
We conclude that Customedia has forfeited its Appointments Clause challenge. “Our law is well established that arguments not raised in the opening brief are waived.” SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1319 (Fed. Cir. 2006) (citing Cross Med. Prods., Inc. v. Medtronic Sofamor Danek, Inc., 424 F.3d 1293, 1320–21 n.3 (Fed. Cir. 2005)). That rule applies with equal force to Appointments Clause challenges. See, e.g., Island Creek Coal Co. v. Wilkerson, 910 F.3d 254, 256 (6th Cir. 2018); Turner Bros., Inc. v. Conley, 757 F. App’x 697, 699–700 (10th Cir. 2018); see also Arthrex, slip op. at 29 (emphasizing that Appointments Clause challenges are not jurisdictional and that the court was granting relief only when the party had properly raised the challenge on appeal). Customedia did not raise any semblance of an Appointments Clause challenge in its opening brief or raise this challenge in a motion filed prior to its opening brief. Consequently, we must treat that argument as forfeited in this appeal.
Accordingly,
IT IS ORDERED THAT:
The motion to vacate and remand is denied.
Customedia Technologies, LLC v. Dish Network Corp. (Precedential Order)
In each of the above-captioned appeals, Customedia Technologies, LLC submits a notice of supplemental authority identifying this court’s recent decision in Arthrex, Inc. v. Smith & Nephew, Inc., No. 2018-2140 (Fed. Cir. Oct. 31, 2019). That decision vacated and remanded for the matter to be decided by a new panel of Administrative Patent Judges (“APJs”) at the Patent Trial and Appeal Board after this court concluded that the APJs’ appointments violated the Appointments Clause. Customedia’s letters seek to assert the same challenge here, which the court construes as a motion to vacate the Board decisions here and remand in accordance with Arthrex.
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Consequently, we must treat that argument as forfeited in these appeals.
Accordingly,
IT IS ORDERED THAT:
The motions to vacate and remand are denied.
Uniloc 2017 LLC v. Facebook, Inc. (Nonprecedential Order)
In light of this court’s decision in Arthrex, Inc. v. Smith & Nephew, Inc., No. 18-2140 (Fed. Cir. Oct. 31, 2019) and the fact that Uniloc has raised an Appointments Clause challenge in its opening brief in this case,
IT IS ORDERED THAT:
1. The oral argument scheduled for November 4, 2019 is cancelled and the case is removed from the calendar.
2. The Patent Trial and Appeal Board’s decision in No. IPR2016-01756 is vacated and the case is remanded to the Board for proceedings consistent with this court’s decision in Arthrex.