This morning the Federal Circuit released a precedential opinion in a veterans case, denying a petition to set aside the Secretary of Veterans Affairs’ denial of rulemaking. The Federal Circuit also released a nonprecedential opinion in a patent case appealed from the Patent Trial and Appeal Board. Notably, in the second case, Judge Lourie dissented. Late yesterday the Federal Circuit also released a nonprecedential order dismissing a case. Here are the introductions to the opinions and text from the order.
Military-Veterans Advocacy Inc. v. Secretary of Veterans Affairs (Precedential)
Military-Veterans Advocacy Inc. (“MVA”) petitioned the Secretary of Veterans Affairs (“VA”)1 to issue a rule that would presume herbicide exposure for veterans who served in Guam or Johnston Island during specified periods. The VA denied MVA’s rulemaking petition. MVA now petitions this court under 38 U.S.C. § 502 to set aside the VA’s denial and remand for rulemaking. We deny the petition.
SynQor, Inc. v. Vicor Corp. (Nonprecedential)
In 2017, we affirmed-in-part, vacated-in-part, and remanded the Patent Trial and Appeal Board (Board) decisions in inter partes reexamination proceedings for U.S. Patent Nos. 8,023,290 (’290 patent) and 7,272,021 (’021 patent). Vicor Corp. v. SynQor, Inc., 869 F.3d 1309, 1312 (Fed. Cir. 2017) (SynQor II). Before the Board issued its remand decisions, the ’021 patent expired. Patent Owner SynQor appeals, asking this court to vacate the Board’s decision rejecting claims 49 and 50 of the ’021 patent pursuant to United States v. Munsingwear, 340 U.S. 36 (1950), whereby an appellate court can vacate a lower court’s or administrative agency’s decision when review of that decision on the merits becomes moot “by the vagaries of circumstance.” U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18, 25 (1994). Recently, in SynQor, Inc. v. Vicor Corp., 988 F.3d 1341 (Fed. Cir. 2021) (SynQor IV), we granted SynQor’s request for vacatur of a Board decision rejecting claims 34–38 of related U.S. Patent No. 7,072,190 (’190 patent). Because the request for vacatur in this case is materially identical to the request in SynQor IV, we similarly vacate the Board’s remand decision regarding claims 49 and 50 of the ’021 patent.
LOURIE, Circuit Judge, dissenting.
I respectfully dissent from the vacatur of the Board’s decision rejecting claims 49 and 50. The majority states that this case is “materially indistinguishable” from SynQor IV because the patent in both cases expired before the Board’s appeals process was completed. Majority at 6. I question that conclusion. In SynQor IV, the Board first rejected new claim 34 two years before the patent expired. In contrast, in this case, the patent expired before the Board rejected new claims 49 and 50. That makes a big difference when SynQor comes before us seeking an equitable remedy.
Strahler v. United States (Nonprecedential Order)
The parties having so agreed, it is ordered that:
(1) The proceeding is DISMISSED under Fed. R. App. P. 42 (b).
(2) Each side shall bear their own costs.