Opinions
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This morning, the Federal Circuit released two precedential opinions, three nonprecedential opinions, three nonprecedential orders, and six Rule 36 summary affirmances. One of the precedential opinions addresses an appeal from a judgment of the Civilian Board of Contract Appeals. The other precedential opinion addresses an appeal from a district court judgment in a patent case and addresses indefiniteness. Two of the three nonprecedential opinions affirm judgments of the Patent Trial and Appeal Board. The third nonprecedential opinion affirms a judgment of the Court of Federal Claims in a pro se case. The orders are dismissals. Here are the introductions to the opinions and links to the dismissals and summary affirmances.

Avue Technologies Corporation v. Department of Health and Human Services (Precedential Opinion)

Avue Technologies Corporation (“Avue”) appeals a decision by the Civilian Board of Contract Appeals (“Board”), which dismissed for lack of jurisdiction Avue’s appeal of a claim under the Contract Disputes Act (“CDA”).  Avue nonfrivolously alleged that it is party to a procurement contract with the Food and Drug Administration (“FDA”) via incorporation of Avue’s end-user licensing agreement (“EULA”) into an FDA task order, which is governed by a Federal Supply Schedule (“FSS”) contract between a thirdparty and the General Services Administration (“GSA”).  Such an allegation is adequate to establish the Board’s jurisdiction over Avue’s CDA claim.  Whether Avue actually is a “contractor” for purposes of pressing the CDA claim is a matter (among others) on which Avue will have to prevail on the merits.  We vacate the Board’s dismissal and remand with instructions that the Board provide Avue with an opportunity to prove its claim. 

Maxell, Ltd. v. Amperex Technology Limited (Precedential Opinion)

Maxell, Ltd. owns U.S. Patent No. 9,077,035, which describes and claims a rechargeable lithium-ion battery.  Amperex Technology Limited is a manufacturer of lithium-ion batteries.  In two now-consolidated actions, Maxell asserted infringement, and Amperex challenged the validity, of claims of the ’035 patent.  The ’035 patent’s claims require at least two lithium-containing transition metal oxides, represented by formulas that include a transition metal element M1, and, as relevant here, two limitations of the claims state requirements for that element.  The district court held the claim language defining M1 to be indefinite on the ground that the two limitations contradicted each other, Maxell, Ltd. v. Amperex Technology Ltd., No. 21-cv-00347, 2022 WL 16858824, at *19–21 (W.D. Tex. Nov. 10, 2022) (Claim Construction Order), and on that basis the court entered partial final judgment in favor of Amperex, J.A. 18–20.  We reverse, concluding that there is no contradiction and therefore no indefiniteness.  The case is remanded for further proceedings.

In re Samuels (Nonprecedential Opinion)

This is a design patent application case.  Appellants Justin Samuels and Samuel Rockwell filed U.S. Design Patent Application No. 29/577,270, titled “Waffle Having a Waffle Pattern Side and a Smooth Side,” on September 12, 2016.  The assigned examiner in the U.S. Patent and Trademark Office rejected the claim under 35 U.S.C. § 102(a)(1) as being anticipated by the Belgian Waffle Sandwich Video (a video posted publicly on YouTube).  The Patent Trial and Appeal Board affirmed the examiner’s rejection.  J.A. 1.  The applicants timely appealed.  We have jurisdiction.  28 U.S.C. § 1295(a)(4); 35 U.S.C. § 141(a).  We affirm.

In re Samuels (Nonprecedential Opinion)

Appellants Justin Samuels and Samuel Rockwell filed U.S. Patent Application No. 15/168,768, titled “Asymmetrically Patterned Baked Bread Food” on May 31, 2016.  The assigned examiner in the U.S. Patent and Trademark Office rejected claim 1, the only currently pending claim, for obviousness under 35 U.S.C. § 103, in light of two prior-art references: Krepshaw (an article in the internet publication CNET) and Freeman (U.S. Patent No. 3,799,047).  J.A. 336, 325, 211 (Krepshaw), 439 (Freeman).  The Patent Trial and Appeal Board affirmed the examiner’s rejection.  Ex Parte Justin Samuels & Samuel Rockwell, No. 2021000092, 2021 WL 2103345, at *3 (P.T.A.B. May 20, 2021) (PTAB Decision).  The applicants timely appealed.  We have jurisdiction.  28 U.S.C. § 1295(a)(4); 35 U.S.C. § 141(a).  We affirm.

Tindall v. United States (Nonprecedential Opinion)

James W. Tindall appeals pro se a decision of the United States Court of Federal Claims that dismissed his complaint for lack of jurisdiction and for failure to state a claim.  We affirm.

Dismissals

Rule 36 Judgments