Late yesterday, the Federal Circuit released two nonprecedential orders, each dismissing an appeal. This morning, the Federal Circuit released one precedential opinion, three nonprecedential opinions, two summary affirmances, and two nonprecedential orders. The lone precedential opinions comes in a patent case on appeal from the International Trade Commission. Of the nonprecedential opinions, two come in a patent cases, while one comes in an appeal from the Merit Systems Protection Board. Both nonprecedential orders dismiss appeals. Here are the introductions to the opinions and links to the summary affirmances and dismissals.
Lashify, Inc. v. International Trade Commission (Precedential)
Lashify, Inc., an American company with headquarters and employees in the United States, distributes, markets, and sells in the United States eyelash extensions (and cases and applicators for the eyelash extensions) that it arranges to have manufactured abroad. Lashify, having patents on the products, filed a complaint before the International Trade Commission (Commission or ITC) alleging that certain other importers of like products were violating section 337 of the Tariff Act of 1930, 19 U.S.C. § 1337, because (as relevant here) their products infringe (e.g., the products’ sale in or importation into the U.S. infringes) claims of three Lashify-owned patents: a utility patent, U.S. Patent No. 10,721,984; and two design patents, U.S. Design Patent Nos. D877,416 and D867,664. Section 337 provides relief against such importation, but “only if an industry in the United States, relating to the articles protected by the patent . . . exists or is in the process of being established.” 19 U.S.C. § 1337(a)(2). That domestic-industry requirement demands a showing of “an industry” as defined by section 337(a)(3) (commonly called the “economic prong”) and a showing of its “relati[on] to the [patented] articles” (commonly called the “technical prong”), the latter (at least here) requiring the complainant’s products to come within the asserted patents.
In this matter, the Commission denied Lashify relief. Certain Artificial Eyelash Extension Systems, Products, and Components Thereof, Inv. No. 337-TA-1226, 2022 WL 6403145, at *3–4, 87 Fed. Reg. 62455, 62455–56 (Oct. 14, 2022) (Commission Order); Certain Artificial Eyelash Extension Systems, Products, and Components Thereof, Inv. No. 337-TA-1226, 2022 WL 15498309, at *37 (Oct. 24, 2022) (Commission Opinion). The Commission ruled that Lashify failed to satisfy the economic-prong requirement, a determination that itself sufficed to deny section 337 relief. Commission Opinion, at *28; Commission Order, at *3. The Commission also ruled that Lashify had satisfied the technical-prong requirement only for the D’416 and D’664 patents, not for the ’984 patent. Commission Opinion, at *3, *10; Commission Order, at *3. Thus, the denial of relief for infringement of the ’984 patent was dually supported, but the denial of relief for infringement of the design patents rested solely on the economic-prong analysis.
On Lashify’s appeal, we agree with Lashify that the Commission applied a legally incorrect understanding of the statutory test for the economic-prong requirement. We affirm the Commission’s finding that Lashify failed to satisfy the technical-prong requirement for the utility patent. Those conclusions require vacatur of the Commission’s decision and a remand regarding the design patents so that the Commission may, using a correct view of the law, reevaluate whether Lashify satisfies the economic-prong requirement.
Montanez v. Merit Systems Protection Board (Nonprecedential)
Deliris Montanez petitions for review of a final order of the Merit Systems Protection Board (Board) dismissing her appeal for lack of jurisdiction. For the following reasons, we affirm.
Regeneron Pharmaceuticals, Inc. v. Mylan Pharmaceuticals Inc. (Nonprecedential)
Celltrion, Inc. (“Celltrion”) appeals a preliminary injunction that bars Celltrion from launching its biosimilar version of Regeneron Pharmaceuticals, Inc.’s (“Regeneron”) FDA-approved aflibercept biologic product EYLEA®. In re: Aflibercept Patent Litig., No. 24-3103, ECF No. 215 (N.D.W. Va. June 28, 2024), J.A. 4–185 (“Celltrion Preliminary Injunction Opinion”). We affirm.
United Services Automobile Association v. PNC Bank (Nonprecedential)
United Services Automobile Association (“USAA”) appeals from a final written decision issued by the Patent Trial and Appeal Board in an inter partes review of U.S. Patent No. 9,224,136. PNC Bank N.A. v. United Servs. Auto. Ass’n, No. IPR2022-00075, Paper 47 (P.T.A.B. June 9, 2023) (“Decision”). The Board found all claims of the ’136 patent unpatentable under 35 U.S.C. § 103. Id. at 66–67. For the reasons discussed below, we affirm the Board’s decision.