Federal Circuit: July 2009 Archives
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July 2009 Archives

In re McNeil-PPC, Inc., No. 08-1546

In a patent application dispute involving tampon design, Board of Patent Appeals and Interferences judgment is reversed where: 1) plaintiff's appeal is timely; 2) the Board's rejection of claim 1 of the patent as anticipated, because another unexamined application discloses a tampon with the characteristics claimed by plaintiff, lacks substantial evidentiary support.    

Read In re McNeil-PPC, Inc., No. 08-1546

Appellate Information
Appeal from the United States Patent and Trademark Office, Board of Patent Appeals and Interferences.
Decided: July 31, 2009

Judges
Before MICHEL, Chief Judge, RADER, and DYK, Circuit Judges.
Opinion by Chief Judge MICHEL.
Circuit Judge DYK dissents.

Counsel
For Appellant: Dianne B. Elderkin, Woodcock Washburn, LLP, Philadelphia, Pennsylvania

For Respondent: Christina J. Hieber, United States Patent and Trademark Office, Alexandria, Virginia.

Court of Federal Claims' dismissal of plaintiff's Fifth Amendment taking claim is affirmed where it correctly determined that plaintiff's property interest arose from access to and use of a navigable waterway, and thus, the interest is subservient to the Government's navigational servitude and is not compensable under the Fifth Amendment.    

Read Northwest Louisiana Fish & Game Preserve Comm'n v. U.S., No. 08-5039

Appellate Information
Appeal from the United States Court of Federal Claims.
Decided: July 31, 2009

Judges
Before LOURIE, RADER, and DYK, Circuit Judges.
Opinion by RADER, circuit Judge.

Counsel
For Plaintiff: William P. Crews, Jr., William P. Crews, Jr., LLC, Natchitoches, Louisiana.

For Defendant: Mark R. Haag, United States Department of Justice, Washington, DC.

Salman Ranch Ltd. v. US, No. 08-5053

In a dispute involving a Final Partnership Administrative Adjustment issued by the IRS, Court of Federal Claims judgment is reversed where the court erred in holding that the IRS was entitled to the benefit of the six-year statute of limitations under I.R.C. sec. 6501(e)(1)(A), as the alleged overstatement of the basis of the property in question by plaintiff did not constitute an omission from gross income under the statute. Accordingly, the three-year limitations period of the statute controls, and the Final Partnership Administrative Adjustment is untimely, and therefore invalid.    

Read Salman Ranch Ltd. v. US, No. 08-5053

Appellate Information
Appeal from the United States Court of Federal Claims.
Decided: July 30, 2009

Judges
Before NEWMAN and SCHALL, Circuit Judges, and PATEL, District Judge.
Opinion by SCHALL, Circuit Judge.
Dissenting opinion filed by Circuit Judge NEWMAN

Counsel
For Plaintiff: Alan Poe, Holland & Hart LLP, Greenwood Village, Colorado.

For Defendant: Joan I. Oppenheimer, United States Department of Justice, Washington, Dc.

Abbott Labs. v. US, No. 09-5014

In a dispute involving a request for a tax refund, Court of Federal Claims' judgment is affirmed where the government's interpretation of the law is entitled to deference as its denial of plaintiff's refund claim on grounds that the assessment period under 26 U.S.C. sec. 6501 had expired was reasonable and not inconsistent with any prior interpretation that was entitled to deference.    

Read Abbott Labs. v. US, No. 09-5014

Appellate Information
Appeal from the United States Court of Federal Claims
Decided July 29, 2009

Judges
Before LINN, DYK, and PROST, Circuit Judges.
Opinion by PROST, Circuit Judge.

Counsel
For Plaintiff: Thomas V. Linguanti, Baker & McKenzie LLP, Chicago, Illinois.

For Defendant: Francesca U. Tamami, United States Department of Justice, Washington, DC.

Wavetronix v. EIS Electronic Integrated Sys., No. 08-1129

In a patent infringement action involving systems for monitoring the flow of automobile traffic on thoroughfares, summary judgment for defendant is affirmed where: 1) defendant's monitoring device does not practice the "defining traffic lanes" step of the disputed claim and therefore does not literally infringe plaintiff's patent; and 2) plaintiff's infringement by equivalents claim fails, as the manner in which defendant's monitoring device defines lanes is much different than the patented invention.    

Read Wavetronix v. EIS Electronic Integrated Sys., No. 08-1129


Appellate Information
Appeal from the United States District Court for the District of Utah.
Decided July 29, 2009

Judges
Before NEWMAN and SCHALL, Circuit Judges, and PATEL, District Judge.
Opinion by PATEL, District Judge

Counsel
For Plaintiff: Brent P. Lorimer, Workman Nydegger, Salt Lake City, Utah.

For Defendant: Richard D. Rochford, Nixon Peabody LLP, Rochester, New York.

Lisanti v. Office of Personnel Mgmt., No. 08-3261

Merit Systems Protection Board judgment regarding the Office of Personnel Management's calculation of plaintiff's retirement annuity is affirmed where: 1) the Board erred in stating that neither it nor OPM had the authority to question the Administrative Office's determination of plaintiff's basic pay; 2) the Board properly affirmed the OPM's decision that transcript income should not be included in the definition of basic pay; and 3) plaintiff's request for class treatment is moot since Board's decision that plaintiff's transcript income did not qualify as basic pay has been affirmed.    

Read Lisanti v. Office of Personnel Mgmt., No. 08-3261

Appellate Information
Petition for review of the Merit Systems Protection Board.
Decided July 29, 2009

Judges
Before MICHEL, Chief Judge, and NEWMAN and LOURIE, Circuit Judges
Opinion by LOURIE, Circuit Judge.

Counsel
For Petitioner: Linda D. Friedman, Stowell & Friedman, Ltd.

For Respondent: Tara J. Kilfoyle, United States Department of Justice.

Kirkendall v. Dep't of the Army, No. 08-3342

Merit Systems Protection Board judgment is reversed where plaintiff's rights under the Veterans Employment Opportunities Act rights were violated and he was entitled to corrective relief as plaintiff had the right to have his experience as related in his military documents credited as part of his application. The Board's final decision denying plaintiff relief on his Uniformed Services Employment and Reemployment Rights Act claim is vacated where the Board abused its discretion in failing to draw adverse inferences against defendant with respect to its knowing destruction of pertinent documents while the case was underway.    

Read Kirkendall v. Dep't of the Army, No. 08-3342

Appellate Information
Petition for review of the Merit Systems Protection Board
Decided: July 27, 2009

Judges
Before MAYER, CLEVENGER, and SCHALL, Circuit Judges.
Opinion by CLEVENGER, Circuit Judge.

Counsel
For Petitioner: Justin S. Herring, Gibson, Dunn & Crutcher LLP, Washington, DC.
For Respondent: Scott D. Austin, United States Department of Justice, Washington, DC.

Blackboard, Inc. v. Desire2Learn, Inc., No. 08-1368

In a patent infringement action involving Internet-based educational support systems, district court judgment is affirmed in part, reversed in part and dismissed in part where: 1) the district court erred in its interpretation of the claim language in its denial of defendant's motion for judgment as a matter of law as defendant did not waive its right to challenge the construction of claims 36-38 in the disputed patent; 2) under their proper construction, claims 36-38 of the patent are invalid for anticipation as a matter of law based on testimony, documentary evidence, and the absence of a "single login" requirement; and 2) the court properly ruled that claims 1-35 of the patent were invalid for indefiniteness.    

Read Blackboard, Inc. v. Desire2Learn, Inc., No. 08-1368

Appellate Information
Appeal from the United States District Court for the Eastern District of Texas.
Decided: July 27, 2009

Judges
Before BRYSON and MOORE, Circuit Judges, and CUDAHY, Senior Circuit Judge.
Opinion by BRYSON Circuit Judge.

Counsel
For Plaintiff: Joel M. Freed and Michael S. Nadel, McDermott Will & Emery LLP, Washington, DC.
For Defendant: Harold C. Wegner and George E. Quillin, Foley & Lardner LLP, Washington, DC.

Lai Services, Inc. v. Gates, No. 08-1317

In a contract dispute involving material distribution services for the military, Armed Services Board of Contract Appeals judgment is reversed where: 1) the billing and payment for minimum military packing of off-base transshipments is governed by contract line item 0002 rather than contract line item 0001 based on the plain language of the contract; and 2) plaintiff should be compensated on a per-package basis under contract line item 0002 rather than per unit.    

Read Lai Services, Inc. v. Gates, No. 08-1317

Appellate Information
Appeal from the Armed Services Board of Contract Appeals.
Decided July 24, 2009

Judges
Before SCHALL, BRYSON, and LINN, Circuit Judges.
Opinion by SCHALL, Circuit Judge.

Counsel
For Appellant: Thomas L. McGovern III, Hogan & Hartson L.L.P., Washington, DC.
For Appellee: David M. Hibey, United States Department of Justice, Washington, DC.

In a patent dispute involving the differentiation of adipose-derived stem cells, district court judgment finding that defendants were not co-inventors of the patent in question and granting a misjoinder motion is affirmed where there is clear and convincing evidence that plaintiff's researchers conceived of each claim of their invention through contemporaneous corroboration before the arrival of defendants at the university.    

Read Univ. of Pittsburgh of the Commonwealth System of Higher Education v. Hedrick, No. 08-1468

Appellate Information
Appeal from the United States District Court for the Central District of California.
Decided: July 23, 2009

Judges
Before MAYER, RADER, and BRYSON, Circuit Judges.
Opinion by MAYER, Circuit Judge.

Counsel
For Plaintiff: Glenn J. Pfadenhauer, Williams & Connolly LLC.
For Defendant: John Allcock, DLA Piper LLP.

In re Hotels.com, No. 08-1429

In a trademark registration action, Trademark Trial and Appeal Board judgment rejecting petitioner's trademark registration is affirmed where the Board's finding that HOTELS.COM mark is a generic term for hotel information and reservations is supported by substantial evidence.    

Read In re Hotels.com, No. 08-1429

Appellate Information
Appeal from the United States Patent and Trademark Office, Trademark Trial and Appeal Board.
Decided: July 23, 2009

Judges
Before MICHEL, Chief Judge, NEWMAN, and GAJARSA Circuit Judges.
Opinion by NEWMAN, Circuit Judge.

Counsel
For Appellant: Gary D. Krugman, Sughrue Mion, PLLC.
For Appellee: Raymond T. Chen, United States Patent and Trademark Office.

Fagan v. Shinseki, No. 08-7112

United States Court of Appeals for Veterans Claims judgment denying a claim for service connection benefits for bilateral hearing loss is affirmed where the court did not misinterpret the benefit of the doubt doctrine under 38 U.S.C. sec. 5107(b), and properly decided that claimant could not benefit from the doctrine because the preponderance of evidence weighed against a nexus between his further hearing loss and his military service.    

Read Fagan v. Shinseki, No. 08-7112

Appellate Information
Appeal from the United States Court of Appeals for Veterans Claims.
Decided: July 22, 2009

Judges
Before MICHEL, Chief Judge, SCHALL and LINN, Circuit Judges.
Opinion by SCHALL, Circuit Judge.

Counsel
For Appellant: Kathleen A. Daley, Finnegan, Henderson, Farabow, Garrett & Dunner, L.L.P.
For Respondent: Jane W. Vanneman, United States Department of Justice.

Dedrick v. Berry, No. 09-1082

In a mixed disability discrimination and disability retirement claim, the matter is transferred in its entirety to the Fourth Circuit for lack of jurisdiction where: 1) the present court is not the proper venue for review of the district court's dismissal of plaintiff's discrimination claim; and 2) the claims may not be bifurcated into two lines of review, and thus it was not possible to accept the transfer of solely plaintiff's disability retirement claim. 

Read Dedrick v. Berry, No. 09-1082

Appellate Information
Appeal from the United States District Court for the District of Maryland.
Decided July 21, 2009

Judges
Before NEWMAN, GAJARSA, and DYK, Circuit Judges.
Opinion by GAJARSA, Circuit Judge.

Counsel
For Plaintiff: Edward C. Dedrick, Pro Se, North East, Maryland.

For Defendant: Dawn E. Goodman, United States Department of Justice, Washington, DC.

Carolina Power and Light Co. v. US, No. 08-5108

Court of Federal Claims judgment against the United States for the Department of Energy's partial breach of its contract with certain nuclear utilities is affirmed in part and vacated in part where: 1) the trial court improperly relied on the 2004 annual capacity report process for calculating damages, and on remand must determine damages based on the 1987 schedule identified in Pacific Gas as the appropriate measuring stick for determining the parties' contractual intent; and 2) the court did not err in holding that defendants should be allowed to recover an appropriate portion of overhead costs and other indirect expenses.    

Read Carolina Power and Light Co. v. US, No. 08-5108

Appellate Information
Appeal from the United States Court of Federal Claims
Decided July 21, 2009

Judges
Before MAYER, RADER, and BRYSON, Circuit Judges.
Opinion by RADER, Circuit Judge.

Counsel
For Plaintiff: Brad Fagg, Morgan, Lewis & Bockius LLP, Washington, DC.

For Defendant: Harold D. Lester, Jr., United States Department of Justice, Washington, DC.

Gemtron Corp. v. Saint-Gobain Corp., No. 09-1001

In a patent infringement action involving refrigerator parts, district court's grant of summary judgment and permanent injunction for plaintiff is affirmed where: 1) the court properly construed the claim term "relatively resilient end edge portion" in the patent to require only that the frame of the shelf be flexible at the time of manufacture; 2) the court properly granted summary judgment as there was undisputed evidence that the frames of defendant's accused shelves were flexible at the time of manufacture, and thus infringed on plaintiff's patent; and 3) the court did not err in denying defendant's motion for a new trial on obviousness as plaintiff's expert's testimony provided substantial evidence that a person of ordinary skill in the art would not have expected the results of the combination recited in the patent, and defendant did not seek to exclude or strike the expert's testimony at trial and therefore the issue is waived.   

Read Gemtron Corp. v. Saint-Gobain Corp., No. 09-1001

Appellate Information
Appeal from the United States District Court for the Western District of Michigan.
Decided July 20, 2009

Judges
Before MICHEL, Chief Judge, SCHALL and LINN, Circuit Judges.
Opinion by LINN, Circuit Judge.

Counsel
For Plaintiff: David L. De Bruin, Michael Best & Friedrich LLP, of Chicago, Illinois.

For Defendant: Arthur I. Neustadt, Oblon, Spivak, McClelland, Maier & Neustadt, P.C., of Alexandria, Virginia.

Thun v. Shinseki, No. 08-7135

In a dispute involving veterans' disability ratings, Court of Appeals for Veterans Claims judgment is affirmed where, although only the Under Secretary for Benefits and the Director of the Compensation and Pension Service are authorized to assign an extra-schedular disability rating under Department of Veteran's Affairs regulations, DVA regional offices and the Board of Veterans' Appeals may conduct initial screenings and fact finding of disability claims and may refer to the Under Secretary or the Director those claims that have a plausible basis for extra-schedular consideration. 

Read Thun v. Shinseki, No. 08-7135

Appellate Information
Appeal from the United States Court of Appeals for Veterans Claims
Decided July 17, 2009

Judges
Before MAYER, RADER, and BRYSON, Circuit Judges..
Opinion by BRYSON, Circuit Judge.

Counsel
For Appellant: Kenneth M. Carpenter, Carpenter, Chartered, Topeka, Kansas.

For Appelle: Meredyth Cohen Havasy, United States Department of Justice, Washington, DC.

Reilly v. Office of Personnel Mgmt., No. 08-3236

Merit Systems Protection Board judgment affirming a denial of plaintiff's application for disability retirement is vacated and remanded where the Board erred in adopting a categorical rule barring consideration of post-retirement evidence.    

Read Reilly v. Office of Personnel Mgmt., No. 08-3236

Appellate Information
Petition for review of the Merit Systems Protection Board.
Decided July 15, 2009

Judges
Before MICHEL, Chief Judge, DYK and MOORE, Circuit Judges.
Opinion by DYK, Circuit Judge.

Counsel
For Petitioner: Brian T. Edmunds, Arnold & Porter LLP.

For Respondent: Michael J. Dierberg, United States Department of Justice.

Erickson v. US Postal Service, No. 08-3216

In an action brought by a former postal service employee under the Uniformed Services Employment and Reemployment Rights Act (USERRA), Merit Systems Protection Board judgment is affirmed in part and reversed in part where: 1) the Board erred in rejecting plaintiff's claim of unlawful discrimination based on his military service as plaintiff's cumulative military absence at the time of his removal did not exceed five years and thus he retained employment rights under USERRA; 2) the Board properly held that plaintiff failed to make a timely application for reemployment under USERRA and thus defendant did not unlawfully refuse to reemploy him after his service; and 3) the case is remanded so that the Board can explicitly address whether plaintiff waived his USERRA rights by abandoning his civilian career to pursue one in the military.   

Read Erickson v. US Postal Service, No. 08-3216

Appellate Information
Petition for review of the Merit Systems Protection Board.
Decided July 14, 2009

Judges
Before BRYSON,and GAJARSA, Circuit Judges, and ST. EVE, District Judge.
Opinion by BRYSON, Circuit Judge.

Counsel
For Petitioner: Ariel E. Solomon, Tully Rinckey P.L.L.C.

For Respondent: Tara K. Hogan, United States Department of Justice.

Weed v. Social Security Admin., No. 08-3112

Petition for review of a Merit Systems Protection Board finding that the Social Security Administration did not willfully violate plaintiff's veterans' preference rights is dismissed for lack of jurisdiction where the agency and the Board have yet to reach any final determination as to whether plaintiff would or would not have been hired in a properly reconstructed selection process, and thus, the decision of the Board on appeal is not a final order or final decision for purposes of 28 U.S.C. 1295.    

Read Weed v. Social Security Admin., No. 08-3112

Appellate Information
Petition for review of the Merit Systems Protection Board.
Decided: July 13, 2009

Judges
Before LINN, DYK, and PROST, Circuit Judges.
Opinion by LINN, Circuit Judge.

Counsel
For Petitioner: Morris E. Fischer, Law Office of Morris E. Fischer, Bethesda, Maryland.

For Respondent: Joseph E. Ashman, United States Department of Justice, Washington, DC.

In re Shinnecock Smoke Shop, No. 09-1100

Trademark Trial and Appeal Board judgment is affirmed where: 1) the board properly affirmed the rejection of petitioner's trademark application, as the Shinnecock Indian Nation is an institution and thus falls within the protection of 15 U.S.C. sec. 1052(a); 2) the USPTO's refusal to register his marks was not a violation of the due process clause of the Fifth Amendment, as the petitioner was provided a full opportunity to prosecute his applications and to appeal the examining attorney's final rejections to the Board; 3) the refusal did not violate petitioner's equal protection rights, as the Board and the examining attorney had legitimate, nondiscriminatory reasons for denying registration; and 4) the refusal to register the mark was not racial discrimination in violation of the United Nations' International Convention on the Elimination of All Forms of Racial Discrimination, as petitioner failed to establish any racial discrimination, and he has no private right of action under the treaty.    

Read In re Shinnecock Smoke Shop, No. 09-1100

Appellate Information
Appeal from the United States Patent and Trademark Office Trademark Trial and Appeal Board.
Decided: July 1, 2009

Judges
Before Before MAYER, CLEVENGER, and SCHALL, Circuit Judges.
Opinion by CLEVENGE, Circuit Judge.

Counsel
For Appellant: Scott Michael Moore, Moore International Law Offices, New York, NY.
For the Director of the United States Patent and Trademark Office: Thomas V. Shaw, United States Patent and Trademark Office, Alexandria, VA.

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