In a patent case involving nutritional supplements containing a ketoacid and an amino acid to enhance muscle performance or recovery from fatigue, summary judgment holding certain of plaintiff's patent claims invalid as anticipated is affirmed as the Professional Protein advertisement constitutes an anticipatory printed publication under section 102(b) that invalidates the asserted claims of the patent as: 1) the ad discloses each and every claim limitation as a matter of law; and 2) a person of skill in the art, combining his or her knowledge of the art with the advertisement's suggestions, would have considered the advertisements to be enabled.      

Read Iovate Health Sci., Inc. v. Bio-Engineered Supplements & Nutrition, Inc., No. 09-1018

Appellate Information

Appeal from:  United States District Court for the Eastern District of Texas

Decided November 19, 2009

Judges

Before:  Lourie, Mayer, and Prost, Circuit Judges

Opinion by Circuit Judge Lourie

Counsel

For Appellant:   Charles A. Weiss, Kenyon & Kenyon LLP, New York, New York

For Appellee:  Philip D. Segrest, Jr., Husch Blackwell Sanders Welsh & Katz, Chicago, Illinois

In plaintiff's post-award bid protest case against the Department of the Air Force (agency) for awarding a billion-dollar-plus contract to Boeing for long-term maintenance on the Air Force's fleet of KC-135 Stratotanker aircraft, judgment in favor of plaintiff is reversed and the injunction against proceeding with the contract awarded to Boeing is vacated as the agency's price-realism analysis based on the set work package was not arbitrary and capricious, and the trial court's contrary determination was not within the court's scope of review under the APA standard. 

Read Alabama Aircraft Indus., Inc. v. US, No. 09-5021

Appellate Information

Appeal from:  United States Court of Federal Claims

Decided November 17, 2009

Judges

Before Newman, Plager,  and Moore, Circuit Judges

Opinion by Circuit Judge Plager

Counsel

For Appellant:  David R. Hazelton, Latham & Watkins LLP, Washington, DC.

For Appellee:  Douglas K. Mickle, Senior Trial Attorney, Commercial Litigation Branch, US Department of Justice, Washington, DC.

A decision of the Merit Systems Protection Board (Board) affirming the Social Security Administration's removal of petitioner for his participation in an income tax fraud sponsored by another Social Security employee is affirmed as to a conclusion that the Social Security established the charge against the petitioner. However, the decision is vacated and remanded to the extent it upheld the penalty of removal as neither the record before the Board nor its findings and conclusions were adequate to enable the circuit court to evaluate and adjudicate the issue of whether petitioner was treated discriminatorily because Social Security removed him but re-employed the other employee.     

Read Williams v. Soc. Sec. Admin., No. 09-3020

Appellate Information

Appeal from:  Merit Systems Protections Board

Decided November 9, 2009

Judges

Before Linn, Friedman, and Dyk, Circuit Judges

Opinion by:  Friedman, District Judge

Counsel

For Appellant:  Phillip R. Kete, American Federation of Government Employees Local 1923.

For Appellee:  Jacob A. Schunk, Commercial Litigation Branch, Civil Division, US Department of Justice, Michael F. Hertz, Acting Assistant Attorney General, Jeanne E. Davidson, Patricia M. McCarthy, Maame A.F. Ewusi-Mensah. 

Final decision of the United States Patent and Trademark Office Trademark Trial and Appeal Board (Board) refusing registration of the mark "Mattress.com" is affirmed as the Board's decision finding the mark generic in relation to the recited services was supported by substantial evidence.     

Read In re 1800Mattress.com IP., LLC, No. 09-1188

Appellate Information

Appeal from:  United States Patent and Trademark Office, Trademark Trial and Appeal Board

Decided November 6, 2009

Judges

Before:  Lourie, Friedman, and Prost, Circuit Judges

Opinion by Circuit Judge Lourie

Counsel

For Appellant:  Francis J. Duffin, Wiggin and Dana LLP

For Appellee:  Raymond T. Chen, Office of the Solicitor, USPTO.

In trademark cancellation proceedings, the Trademark Trial and Appeal Board's (Board) decision canceling registration of appellant-Cold War Museum's service mark THE COLD WAR MUSEUM, finding that it had not proven acquired distinctiveness of the mark, is reversed where: 1) the Board erred in deciding that it could not consider evidence of acquired distinctiveness because appellant did not resubmit the evidence in the cancellation, as the unambiguous language of 37 C.F.R. section 2.122(b) provides that the entire file of the registration at issue is automatically part of the record, without any action necessary by the parties; and 2) the Board erred as a matter of law in concluding that appellee had established a prima facie case that the mark had not acquired distinctiveness as appellee failed to present any evidence whatsoever relating to the distinctiveness of the mark and failed even to argue that the mark had not acquired distinctiveness in its petition for cancellation. 

Read Cold War Museum, Inc. v. Cold War Air Museum, Inc., No. 09-1172

Appellate Information

Appeal from:  United States Patent and Trademark Office, Trademark Trial and Appeal Board

Decided November 5, 2009

Judges

Before:  Lourie, Linn, and Moore, Circuit Judges

Opinion by Circuit Judge Moore

Counsel

For Appellant:  A. Neal Seth, Mark H. Tidman, Baker & Hostetler LLP, Washington, DC

For Appellee:  W. Thomas Timmons, Dallas, Texas

A decision of the U.S. Court of Appeals for Veterans Claims', denying a surviving spouse's claim for dependency and indemnity compensation (DIC) from the Department of Veterans' Affairs, is affirmed as the government's interpretation of 38 U.S.C. section 1311(a)(2) is correct as it does not provide a stand-alone or independent basis for entitlement to DIC benefits. 

Read Barela v. Shinseki, No. 09-7002

Appellate Information

Appeal from:  United States Court of Appeals for Veterans Claims

Decided November 3, 2009

Judges

Before Michel, Chief Judge, Newman and Prost, Circuit Judges

Opinion by Circuit Judge Prost

Counsel

For Appellant:  Kenneth M. Carpenter

For Appellee:  Meredyth Cohen Havasy, Commercial Litigation Branch, Civil Division, U.S. Department of Justice

In plaintiff's case against defendants arising from a patent license agreement dispute, judgment on the pleadings in favor of defendants is reversed and remanded where: 1) the district court erred in finding that plaintiff's subsidiaries are not licensed under the parties' patent licensing Agreement; and 2) the unambiguous Agreement makes clear that the license grant includes subsidiaries of plaintiff and defendant that meet the Agreement's Subsidiary definition.     

Read Imation Corp. v. Koninklijke Philips Elec. N.V., No. 09-1208

Appellate Information

Appeal from:  United States District Court for the District of Minnesota

Decided November 3, 2009

Judges

Before Bryson and Gajarsa, Circuit Judges, and St. Eve, District Judge

Opinion by:  St. Eve, District Judge

Counsel

For Appellant:  Ronald J. Schutz, Robins, Kaplan, Miller & Ciresi LLP; Scott M. Flaherty, David P. Swenson

For Appellee:  Marc De Leeuw, Sullivan & Cromwell LLP; Gerrard R. Beeney, Adam R. Brebner; Albert L. Hogan III; Allan M. Soobert

In a partnership-taxation case involving Marriott, United States Court of Federal Claims' grant of summary judgment in favor of the government is affirmed in its determination that in 1994 the obligation to close a short sale qualified as a liability under I.R.C. section 753 and that the IRS properly adjusted the outside basis of the Marriott partners for the 1994 tax year to account for the partnership's assumption of the obligation to close certain short sales.    

Read Marriott Int'l. Resorts, LP. v. US, No. 09-5007

Appellate Information

Appeal from:  United States Court of Federal Claims

Decided October 28, 2009

Judges

Before Mayer, Rader, and Moore, Circuit Judges

Per Curium Opinion 

Counsel

For Appellant: Robert L. Willmore, Crowell & Moring LLP, Washington, DC 

For Appellee: Joan I. Oppenheimer, Appellate Section, Tax Division, United States Department of Justice, Washington, DC.

In plaintiffs' breach of contract claim against the U.S. government arising from the savings and loan crisis of the early 1980s, the decision of the Court of Federal Claims summarily awarding plaintiffs restitution damages is affirmed in part, reversed in part, vacated and remanded where: 1) government's challenge to the restitution award of $17 million for plaintiffs' capital contribution is rejected; 2) trial court erred in including, as part of the restitution award, the sale premium; 3) trial court erred by not reducing the award by $4.287 million, the value of the tax benefits plaintiffs received; and 4) trial court did not err in offsetting plaintiffs' award with the government's $3 million cash contribution. 

Read Republic Sav. Bank, F.S.B. v. US, No. 08-5075

Appeal from:  United States Court of Federal Claims

Decided October 21, 2009

Judges

Before Lourie, Clevenger, and Schall, Circuit Judges

Opinion by Clevenger, Circuit Judge.   

Counsel

For Appellant:  Christopher T. Handman, Hogan & Hartson LLP, Washington, DC.

For Appellee:  Jeanne E. Davidson, United States Department of Justice, Washington, DC.

The Court of Federal Claims' dismissal of plaintiff's takings claim pursuant to RCFC 12(b)(6) is affirmed as the court did not err in holding that the plaintiff failed to allege a legally cognizable property interest for Fifth Amendment purposes in the ability to freely transfer a portfolio of insurance policies, and thus, there was no cognizable property interest that could be taken when the Risk Management Agency rejected the proposed sale to another company in the crop insurance business. 

Read Acceptance Ins. Co., Inc. v. US, No. 09-5015

Appeal from:  United States Court of Federal Claims

Decided October 1, 2009

Judges

Before Rader, Plager, and Schall, Circuit Judges

Opinion by Schall, Circuit Judge.   

Counsel

For Appellant:  Lewis S. Wiener, Sutherland Asbill & Brennan LLP

For Appellee:  Michael N. O'Connell, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice.