Federal Circuit: September 2009 Archives
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September 2009 Archives

Stockton E. Water Dist. v. US, No. 07-5142

In plaintiffs' case involving claims that defendant-federal government failed to provide the quantities of water that it agreed to make available under contract, trial court's judgment is affirmed in part, reversed in part, vacated in part, and remanded where: 1) trial court's determination with regard to the government's defense that Reclamation had implicit authority to reallocate the water in response to a change in law and policy is reversed as this was not a valid defense on the record; 2) trial court's determination with regard to the Government's defense that the shortages were the result of causes beyond the control of the United States such as to absolve it under the contract provisions is reversed as this was not a valid defense; 3) with regard to the sovereign acts doctrine defense, the trial court was correct in determining that defense unavailing; 4) trial court's dismissal of the takings claim is vacated as plaintiffs are free to pursue their takings claim if they so choose with regard to the years for which the government has been found not liable as a matter of contract law; and 5) regarding the breach of contract claim, the case is remanded for a determination of damages for the years for which the government was liable. 

Read Stockton E. Water Dist. v. US, No. 07-5142

Appellate Information

Appeal from:  United States Court of Federal Claims

Decided September 30, 2009

Judges

Before Newman, Plager, and Gajarsa, Circuit Judges

Opinion by Plager, Circuit Judge.   

Counsel

For Appellant:  Jennifer L. Spaletta, Herum Crabtree Brown

For Appellee: Kathryn E Kovacs, Environment & Natural Resources Division, United States Department of Justice

In a patent case involving claim methods for quantifying HIV in human blood samples, district court's judgment is affirmed in part and vacated and remanded in part where: 1) district court correctly found that Roche's counterclaim for a judgment on its ownership claim was subject to California statutes of limitation; and 2) district court's judgment of invalidity is vacated and remanded with instructions to dismiss Stanford's action as the district court incorrectly declined to consider Roche's affirmative defense based on ownership and as a matter of law Roche possesses an ownership interest in the patents-in-suit that deprives Stanford of standing.     

Read Bd. of Trustees of the Leland Stanford Jr., Univ. v. Roche Molecular Sys. Inc.. No. 08-1509

Appellate Information

Appeal from:  United States District Court for the Northern District of California

Decided September 30, 2009

Judges

Before Linn, Prost, and Moore, Circuit Judges

Opinion by Linn, Circuit Judge.   

Counsel

For Appellant:  Ricardo Rodriguez, Cooley Godward Kronish LLP

For Appellee:  Adrian R. Pruetz, Pruetz Law Group LLP 

In a patent infringement case involving a method for detecting fraudulent bank checks, district court's dismissal of certain counts of plaintiff's suit is affirmed as the allegedly infringing activity was for the United States and with its authorization and consent and thus could only be pursued in the Court of Federal Claims under 28 U.S.C. section 1498(a).   

Read Advanced Software Design Corp. v. Fed. Reserve Bank of St. Louis, No. 08-1152

Appellate Information

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

Decided September 30, 2009

Judges

Before Newman, Prost, and Moore, Circuit Judges

Opinion by Newman, Circuit Judge.   

Counsel

For Appellant:  Keith A. Rabenberg, Senniger Powers LLP

For Appellee:  William H. Levit, Jr., Godfrey & Kahn

Slattery v. US, No. 07-5063

In plaintiffs' breach of contract case against United States, acting through the FDIC, the Court of Federal Claims' judgment is affirmed in part, revered in part and remanded where: 1) the judgment of the Court of Federal Claims is affirmed as to jurisdiction, liability, and the assessment of damages for lost value in the amount of $276 million, net of the receivership deficit, and with an appropriate tax gross-up; 2) judgments as to the award of $67 million in non-overlapping restitution damages and as cumulative the award of wounded bank damages of $28 million are reversed; and 3) dismissal of intervenors' claims relating to the liquidation surplus is reversed and remanded.   

Read Slattery v. US, No. 07-5063

Appellate Information

Appeal from:  United States Court of Federal Claims

Decided September 29, 2009

Judges

Before Newman, Gajarsa, Circuit Judges, and Ward, District Judge

Opinion by Newman, Circuit Judge.   

Counsel

For Appellant:  Thomas M. Buchanan, Winston & Strawn, LLP; Bradley P. Smith, Sullivan & Cromwell LLP

For Appellee:  Jeanne E. Davidson,  Director, Commercial Litigation Branch, Civil Division, United States Department of Justice. 

Reizenstein v. Shinseki, No. 09-7012

Decision of the Veterans Court that 38 C.F.R. section 3.343(a) does not apply to the total disability state of claimant's retrospective stated rating is affirmed as the Department of Veterans Affairs' interpretation of the applicability of the section is not plainly erroneous or inconsistent with the regulation.   

Read Reizenstein v. Shinseki, No. 09-7012

Appellate Information

Appeal from:  United States Court of Appeals for Veterans Claims

Decided September 29, 2009

Judges

Before Newman, Mayer, and Prost, Circuit Judges

Opinion by Prost,  Circuit Judge.   

Counsel

For Appellant:  Kenneth M. Carpenter

For Appellee:  Martin F. Hockey, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice. 

Juneau v. Dep't of Justice, No. 09-8002

Department of Justice's Bureau of Justice Assistance's (BJA) denial of claim for benefits by plaintiff and her three children under the Public Safety Officers' Benefits Act (PSOB Act) 42 U.S.C. section 3796, is affirmed as the BJA correctly determined that plaintiff's deceased husband did not die as a result of the type of injury that is compensable under the PSOB Act. 

Read Juneau v. Dep't of Justice, No. 09-8002

Appellate Information

Appeal from:  Public Safety Officers' Benefits

Decided September 29, 2009

Judges

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

Opinion by Michel, Chief Judge.   

Counsel

For Appellant:  Joseph P. durham, Jr., Langley & Lee, LLC

For Appellee:  Jeffrey A. Regner, Commercial Litigation Branch, Civil Division, United States Department of Justice. 

Arctic Slope Native Ass'n, Ltd. v. Sebelius, No. 08-1532

In plaintiffs' Contract Disputes Act (CDA) claims against the Indian Health Service (IHS), the Civilian Board of Contract Appeals' dismissal of several of plaintiffs' contract claims is affirmed in part and reversed in part as the six-year presentment period is subject to equitable tolling under section 605(a) of the CDA, but the class action tolling does not apply to the claims at issue.   

Read Arctic Slope Native Ass'n, Ltd. v. Sebelius, No. 08-1532

Appellate Information

Appeal from:  Civilian Board of Contract Appeals

Decided September 29, 2009

Judges

Before Lourie, Mayer, and Bryson, Circuit Judges

Opinion by Bryson, Circuit Judge.   

Counsel

For Appellant:  Lloyd B. Miller, Sonosky, Chambers, Sachse, Miller & Munson, LLP; Geoffrey D. Strommer, Hobbs, Straus, Dean & Walker, LLP

For Appellee:  Robert E. Chandler, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice

Walls v. US, No. 08-5179

Judgment of the United States Court of Federal Claims denying petitioner's claim for back pay based on improper transfer after serving in the Navy for twenty years is affirmed in part, vacated in part and remanded where: 1) judgment of the court that petitioner's transfer to the Fleet Reserve was not improper is affirmed; and 2) judgment rejecting petitioner's claim for back pay from October 2000 to mid-May 2001 based on his post-transfer service is vacated and remanded.   

Read Walls v. US, No. 08-5179

Appellate Information

Appeal from:  United States Court of Federal Claims

Decided September 29, 2009

Judges

Before Newman, Gajarsa, and Dyk, Circuit Judges

Opinion by Dyk, Circuit Judge.   

Counsel

For Appellant:  Rebecca A. Koch, Kirkland & Ellis LLP

For Appellee:  Kent Kiffner, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice

Qingdao Taifa Group Co., Ltd. v. US, No. 09-1103

United States Court of International Trade's order enjoining liquidation of entries for importers of hand trucks manufactured and exported by plaintiff-Chinese company during the 2005 to 2006 period is affirmed as the district court did not abuse its discretion in halting the liquidation.   

Read Qingdao Taifa Group Co., Ltd. v. US, No. 09-1103

Appellate Information

Appeal from:  United States Court of International Trade

Decided September 28, 2009

Judges

Before Lourie, Rader, and Moore, Circuit Judges

Opinion by Rader, Circuit Judge.   

Counsel

For Appellant:  Louis S. Mastriani, Adduci, Mastriani & Schaumberg, LLP.

For Appellee:  Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice. 

Janssen Pharm. N.V. v. Teva Pharm. USA, Inc., No. 08-1594

In a patent case involving a method for treating Alzheimer's disease and related dementias, district court's conclusion that the claims of the patent '318 were invalid is affirmed as the patent's description of using galantamine to treat the disease does not satisfy the enablement requirement because the patent application did not establish utility.     

Read Janssen Pharm. N.V. v. Teva Pharm. USA, Inc., No. 08-1594

Appellate Information

Appeal from:  United States District Court for the District of New Jersey

Decided September 25, 2009

Judges

Before Mayer, Gajarsa, and Dyk, Circuit Judges

Opinion by Dyk, Circuit Judge.   

Counsel

For Appellant:  George F. Pappas, Covington & Burling LLP

For Appellee:  William A. Rakoczy, Rakoczy Molino Mazzochi Siwik LLP; George C. Lombardi, Winston & Strawn LLP

AstraZeneca Pharm. LP. v. Teva Pharm. USA, Inc., No. 08-1480

In a patent case involving claims for the antipsychotic drug quetiapine, district court's grant of limited motion for summary judgment of no inequitable conduct in favor of plaintiffs-AstraZeneca, is affirmed as defendants had not presented evidence sufficient for a reasonable jury to find that in the prosecution of the patent application, plaintiff made a misrepresentation of material fact or an omission of material fact, with intent to deceive or mislead the patent examiner into granting the patent.     

Read AstraZeneca Pharm. LP. v. Teva Pharm. USA, Inc., No. 08-1480

Appellate Information

Appeal from:  United States District Court for the District of New Jersey

Decided September 25, 2009

Judges

Before Newman, Rader, and Prost, Circuit Judges

Opinion by Newman, Circuit Judge.   

Counsel

For Appellant:  Henry J. Renk, Fitzpatrick Cella, Harper & Scinto

For Appellee:  Ira J. Levy, Goodwin Procter LLP

Faus Group Inc., v. US, No. 08-1605

Judgment of the United States Court of International Trade sustaining the United States Customs Service's classification of laminated flooring panels imported by Faus Group, Inc. as fiberboard under heading 4411 of the Harmonized Tariff Schedules of the United States (HTSUS), subjecting to a duty rate of 6% ad valorem, is reversed as the flooring panels should be classified within subheading 4418.90.40, the residual category for builders' joinery where it is  subject to a duty of 3.2% ad valorem.     

Read Faus Group Inc., v. US, No. 08-1605

Appellate Information

Appeal from:  United States Court of International Trade

Decided September 25, 2009

Judges

Before Schall, Plager, and Prost, Circuit Judges

Opinion by Plager, Circuit Judge.   

Counsel

For Appellant:  Daniel G. Jarcho, McKenna Long & Aldridge LLP

For Appellee:  Amy M. Rubin, United States Department of Justice

Phillips v. Shinseki, No. 08-7124

Veterans Court's refusal to permit the daughters of the deceased veteran-claimants to be substituted for their fathers is reversed and remanded where: 1) with respect to the deceased veteran's daughter's accrued benefits claim, assuming she has preserved her rights as an accrued benefits claimant, she is entitled to substitution on her father's claim and to the benefits of the Veterans Court's decision in his favor; and 2) with respect to the claim for attorney fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. section 2412, the EAJA claim survives the death of the veteran, regardless of whether the EAJA application was actually filed by the veteran claimant prior to his death.     

Read Phillips v. Shinseki, No. 08-7124

Appellate Information

Appeal from:  United States Court of Appeals for Veterans Claims

Decided September 25, 2009

Judges

Before Michel, Chief Judge, Bryson, Circuit Judge, and Spencer, Chief District Judge

Opinion by Bryson, Circuit Judge.   

Counsel

For Appellant:  Eric Alan Shumsky, Sidley Austin LLP

For Appellee:  Meredyth Cohen Havasy, United States Department of Justice

Edwards v. Shinseki, No. 08-7078

United States Court of Appeals for Veterans Claims' (Veterans Court) judgment affirming the decision of the Board of Veterans' Appeals rejecting petitioner's claim for an earlier-effective date for entitlement to benefits is affirmed as the Veterans Court gave the petitioner adequate notice of the earlier denial of his claim. 

Read Edwards v. Shinseki, No. 08-7078

Appellate Information

Appeal from:  United States Court of Appeals for Veterans Claims

Decided September 24, 2009

Judges

Before Rader, Bryson, and Dyk, Circuit Judges

Opinion by Rader, Circuit Judge.   

Counsel

For Appellant:  James R. Barney, Finnegan, Henderson, Farabow, Garrett & Dunner, LLP of Washington, DC, Elizabeth D. Ferrill, Mark R. Lippman, The Veterans Law Group

For Appellee:  Tara K. Hogan, Commercial Litigation Branch, Civil Division, United States Department of Justice, Jeanne E. Davidson, Director, Martin F. Hockey, Jr. Assistant Director, Michael J. Timinski, Deputy Assistant General Counsel, Office of the General Counsel, United States Department of Veterans Affairs.

Kara Tech., Inc. v. Stamps.com, Inc., No. 09-1027

In a patent infringement and breach of nondisclosure agreement (NDA), involving patents directed toward apparatuses and methods of creating and verifying authenticity of documents such as postage, district court's judgment is vacated in part, reversed in part, and remanded where: 1) the judgment of noninfringement is vacated as the district court erred in construing the claims; and 2) district court's grant of summary judgment on the breach of contract claim is reversed as there are material issues of fact in dispute regarding breach of the NDA due to misuse of the confidential information.     

Read Kara Tech., Inc. v. Stamps.com, Inc., No. 09-1027

Appellate Information

Appeal from:  United States District Court for the Central District of California

Decided September 24, 2009

Judges

Before Schall, Plager, and Moore, Circuit Judges

Opinion by Moore, Circuit Judge.   

Counsel

For Appellant:  Eliot D. Williams, Baker Bolts LLP, Of New York, Robert C. Scheinfeld

For Appellee:  Phillip J. Graves, Graves Law Office, PC

PAM, S.P.A. v. US, No. 09-1066

United States Court of International Trade's (CIT) final judgment concerning pasta imported into the United States by an Italian producer and exporter of pasta, arising from a 1996 Commerce antidumping order, is affirmed as the adverse-facts-available (AFA) 45.49% margin assessed against plaintiff is supported by substantial evidence.     

Read PAM, S.P.A. v. US, No. 09-1066

Appellate Information

Appeal from:  United States Court of International Trade

Decided September 24, 2009

Judges

Before Michel, Chief Judge, Lourie, Circuit Judge, and Clark, District Judge

Opinion by Clark, District Judge.   

Counsel

For Appellant:  David L. Simon, Law Office of David L. Simon, of Washington, DC.

For Appellee:  Jane C. Dempsey, Attorney, Commercial Litigaiton Branch, Civil Division, United States Department of Justice, of Washington, DC.

1st Home Liquidating Trust v. US, No. 08-5050

In a Winstar-related case, judgment by the court of federal claims holding that the government's enactment of the Financial Institutions Reform, Recovery and Enforcement Act (FIRREA) breached the government's contractual promise to allow favorable accounting treatment of supervisory goodwill is reversed and remanded as the government lacked the requisite intent to enter into a contract with plaintiff regarding treatment of goodwill to be generated by plaintiff's conversion, no contract was formed, and thus, there was no breach.     

Read 1st Home Liquidating Trust v. US, No. 08-5050

Appellate Information

Appeal from:  United States Court of Federal Claims

Decided September 22, 2009

Judges

Before Mayer, Gajarsa, and Dyk, Circuit Judges

Opinion by Gajarsa, Circuit Judge.   

Counsel

For Appellant:  Jerry Stouck, Greenberg Traurig, LLP

For Appellee:  Kenneth M. Dintzer, Associate Director, Commercial Litigation Branch, Civil Division, United States Department of Justice. 

In re Lister, No. 09-1060

Decision of the PTO affirming the examiner's rejection of petitioner's claims of his application involving a manuscript for playing golf is vacated and remanded as the record does not contain sufficient evidence that the prior art reference relied upon by the Board was publicly accessible more than one year prior to the date on which the petitioner filed his patent application.     

Read In re Lister, No. 09-1060

Appellate Information

Appeal from:  United States Patent and Trademark Office Board od Patent Appeals and Interferences

Decided September 22, 2009

Judges

Before Gajarsa, Linn, and Prost, Circuit Judges. 
Opinion by Prost, Circuit Judge.   

Counsel

For Appellant:  Peter M. Midgley, Jr., Zarian Midgley & Johnson PLLLC, Rexford A. Johnson

For Appellee:  Joseph G. Piccolo, Associate Solicitor, Office of the Solicitor, United States Patent and Trademark Office, and Raymond T. Chen, Benjamin D.M. Wood

Edwards LifeSci. LLC v. Cook Inc., No. 09-1006

In a patent infringement case involving intraluminal grafts for treating aneurysms and occlusive diseases, district court's grant of summary judgment of noninfringement is affirmed as the court correctly held that no reasonable jury could find literal infringement and that no reasonable jury could find infringement under the doctrine of equivalents.     

Read Edwards LifeSci. LLC v. Cook Inc., No. 09-1006

Appellate Information

Appeal from:  United States District Court for the Northern District of California

Decided September 22, 2009

Judges

Before Lourie, Rader, and Moore, Circuit Judges. 
Opinion by Lourie, Circuit Judge.   

Counsel

For Appellant:  Hugh A. Abrams, Sidney Austin LLP, of Chicago, Illinois, and Constantine L. Trela, Jr., David T. Pritikin, Lisa A. Schneider

For Appellee:  Richard A. Kaplan, Brinks Hofer Gilson & Lione, of Chicago, Illinois, and Bradley G. Lane, Jeffry M. Nichols, Julie L. Leichtman

Dela Rosa v. Office of Pers. Mgmt., No. 09-3121

Decision of the Merit Systems Protection Board that plaintiff is ineligible to make a deposit in the Civil Service Retirement System (CSRS) is affirmed as plaintiff is not within the class of persons permitted to make a deposit pursuant to section 8334(c). 

Read Dela Rosa v. Office of Pers. Mgmt., No. 09-3121

Appellate Information

Appeal from:  Merit Systems Protection Board

Decided September 22, 2009

Judges

Before Michel, Chief Judge, Newman and Prost, Circuit Judges
Opinion by Newman, Circuit Judge.   

Counsel

For Appellant:  Benjamin Dela Rosa

For Appellee:  Christopher A. Bowen, Litigation Branch, Civil Division, Unites States Department of Justice.  

Asymmetrx, Inc. v. Biocare Med., LLC, No. 09-1094

In a dispute over the rights of a patented monoclonal antibodies used for detecting malignant carcinoma, district court's grant of defendant's motion for summary judgment is vacated and remanded as plaintiff lacks the statutory right to bring an action for infringement without joining the patent owner, Harvard.  Although the license effected a broad conveyance of rights to plaintiff, Harvard retained substantial interests under the patents.      

Read Asymmetrx, Inc. v. Biocare Med., LLC, No. 09-1094

Appellate Information

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

Decided September 18, 2009

Judges

Before Lourie, Rader, Circuit Judges, and Clark, District Judge. 
Opinion by Lourie, Circuit Judge.   

Counsel

For Appellant:  Steven M. Bauer, Proskauer Rose, LLP of Boston, massachusetts

For Appellee:  Douglas B. Otto, Morrison Mahoney LLP, of Boston Massachusetts

E. Shawnee Tribe of Oklahoma v. US, No. 08-5102

In Indian tribe's suit against the United States alleging breach of fiduciary duty and other duties as trustee of property and other assets owned by the tribe, Court of Federal Claims' dismissal of the case without prejudice is reversed and remanded as 28 U.S.C. section 1500 is inapplicable because the present complaint and an earlier complaint filed in a district court seek different relief. 

Read E. Shawnee Tribe of Oklahoma v. US, No. 08-5102

Appellate Information

Appeal from:  United States Court of Federal Claims

Decided September 17, 2009

Judges

Before Gajarsa, Dyk, and Moore, Circuit Judges. 
Opinion by Dyk, Circuit Judge.   

Counsel

For Appellant:  Brian J. Leinbach, Engstrom, Lipscomb & Lack, of Los Angeles, California

For Appellee:  Aaron P. Avila, Trial Attorney, Environment and Natural Resource Division, United States Department of Justice, of Washington, DC

Prometheus Labs., Inc. v. Mayo Collaborative Servs., No. 08-1403

In a patent infringement case involving methods for calibrating proper dosage of drugs used to treat gastrointestinal and non-gastrointestinal autoimmune diseases, summary judgment of invalidity is reversed as the court erred as a matter of law in finding the asserted claims to be drawn to non-statutory subject matter, as the claimed methods satisfy all of the requirements under In re Bilski's, 545 F.3d 943 (Fed. Cir. 2008), transformation prong for patent-eligible subject matter under 35 U.S.C. section 101.      

Read Prometheus Labs., Inc. v. Mayo Collaborative Servs., No. 08-1403

Appellate Information

Appeal from:  United States District Court for the Southern District of California

Decided September 16, 2009

Judges

Before Michel, Chief Judge, Lourie, Circuit Judge, and Clark, District Judge. 
Opinion by Lourie, Circuit Judge.   

Counsel

For Appellant: Richard P. Bress, Latham & Watkins LLP, of Washington DC. 

For Appellee: Jonathan E. Singer, Fish & Richardson PC, of Minneappolis, Minnesota.

Vita-Mix Corp. v. Basic Holding, Inc., No. 08-1479

In a patent and trademark infringement case involving a method of preventing formation of an air pocket around the blades of a consumer blender, summary judgment in favor of defendant is vacated and remanded in part, and affirmed in part where: 1) district court's judgment of no direct infringement is vacated and remanded with instruction to apply the correct claim construction; 2) findings of no invalidity for anticipation, obviousness, or lack of enablement is vacated and remanded with instructions to apply the correct claim construction; 3) district court's judgments of no inducement, no contributory infringement, and no trademark infringement is affirmed; and 4) district court's judgment of no inequitable conduct and no laches is affirmed. 

Read Vita-Mix Corp. v. Basic Holding, Inc., No. 08-1479

Appellate Information

Appeal from:  United States District Court for the Northern District of Ohio
Decided September 16, 2009

Judges

Before Bryson, Gajarsa, and Prost, Circuit Judges. 
Opinion by Prost, Circuit Judge.   

Counsel

For Appellant:  David T. Movius, McDonald Hopkins LLC.   

For Appellee:  Larry R. Laycock, David R. Wright, David R. Todd, Robert E. Aycock, and Clinton E. Duke, Workman Nydegger. 

Amgen Inc. v. F. Hoffmann-La Roche Ltd., No. 09-1020

In a patent infringement case involving patents relating to the production of the protein erythropoietin using recombinant DNA technology, district court's judgment is vacated in part and remanded where: 1) district court's grant of summary judgment and of judgment as a matter of law (JMOL) to plaintiff-Amgen of no invalidity for obviousness-type double patenting of certain claims of one patent is vacated and remanded for an obviousness-type double patenting analysis of these claims; and 2) district court's grant of JMOL to Roche of non-infringement of one claim of another patent is vacated and remanded for a new trial on infringement of that claim. District court's grant of injunction to Amgen is not disturbed and the court's judgment is affirmed in all other respects.  

Read Amgen Inc. v. F. Hoffmann-La Roche Ltd., No. 09-1020

Appellate Information

Appeal from:  United States District Court for the District of Massachusetts
Decided September 14, 2009

Judges

Before Mayer, Clevenger, and Schall, CIrcuit Judges. 
Opinion by Schall, Circuit Judge.   

Counsel

For Appellant:  Lloyd R. Day Jr., David M Madrid, Linda A. Sasaki-Baxley, Jonathon D. Loeb, Stuart L. Watt, Wendy A. Whiteford, Erica S. Olson, Cecilia H. Gonzalez, Margaret D. McDonald, Christiam E. Mammen.

For Appellee: Leora Ben-Ami Thomas F. Fleming, Patricia A, Carson, Christopher T. Jagoe Sr., Howard S. Suh, Lee Carl Bromberg, Timothy M. Murphy, Julia Huston, Daniel Forchheimer, Mathew McFarlane.

Gates v. Raytheon Co. , No. 08-1543

The Armed Services Board of Contract Appeals' ruling that defendant was not required to pay interest to the government for a potential violation of Cost Accounting Standard 413, 48 C.F.R. section 9904.413 (CAS 413), is reversed and remanded as defendant's failure to pay the government in the accounting period required by CAS 413 necessarily resulted in increased costs to the government. Therefore, defendant is liable to the government for compound interest under the CAS clause.

Read Gates v. Raytheon Co. , No. 08-1543

Appellate Information

Appeal from:  Armed Services Board of Contract Appeals

Decided September 14, 2009

Judges

Before Mayer, Lourie and Gajarsa, CIrcuit Judges. 
Opinion by Gajarsa, Circuit Judge.   

Counsel

For Appellant:  C. Coleman Bird, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, United States Department of Justice, Jeanne E. Davidson, DIrector, and Kirk T. Manhardt, Assistant Director.  

For Appellee:  Karen L. Manos, Gibson, Dunn & Crutcher LLP, Christyne K. Brennan and Dace A. Caldwell

Davidson v. Shinseki, No. 09-7075

The United States Court of Appeals for Veterans Claims' (Veterans Court) decision finding that claimant's husband did not die from a service-connected or compensable disability is vacated and remanded as the Veterans Court ignored the precedent of the circuit court and incorrectly interpreted 38 U.S.C. section 1154 to require a medical opinion to prove a nexus between a veteran's death and in-service disease.     

Read Davidson v. Shinseki, No. 09-7075

Appellate Information

Appeal from:  United States Court of Appeals for Veterans Claims
Decided September 14, 2009

Judges

Before Linn, Dyk, and Prost, CIrcuit Judges. 
Opinion by Linn, Circuit Judge.   

Counsel

For Appellant:  Bertha G. Davidson, pro se. 

For Appellee:  Michael D. Austin, Trial Attorney, Commercial Litigation Branch, Civil DIsivision, United States Department of Justice, Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, and Kirk T. Manhardt, Assistant Director, and Rachel T. Shenkman, Staff Attorney, Office of the General Counsel, United States Department of Veterans Affairs.

Lucent Tech., Inc. v. Microsoft Corp., No. 08-1485

In Lucent Technologies (Lucent) patent infringement action against Microsoft, district court's judgment against Microsoft is affirmed in part and vacated and remanded in part where: 1) district court's denial of Microsoft's motion for judgment as a matter of law (JMOL) for non-infringement is affirmed as the evidence reasonably permitted the jury to have decided that Microsoft did not prove by clear and convincing evidence that the claims would have been obvious; 2) district court's denial of Microsoft's motion for JMOL that it did not induce infringement of the patent at issue is affirmed; and 3) district court's denial of Microsoft's JMOL regarding the jury's $358 million damages award is vacated and remanded for a new trial on damages as it was not supported by substantial evidence and was against the clear weight of the evidence. 

Read Lucent Tech., Inc. v. Microsoft Corp., No. 08-1485

Appellate Information

Appeal from:  United States District Court for the Southern District of California
Decided September 11, 2009

Judges

Before Michel, Chief Judge, Lourie and  Newman, CIrcuit Judges. 
Opinion by Michel, Chief Judge.   

Counsel

For Appellant:  Constatine L. Trela, Jr., Sidney Austin LLP, Robert N. Hochman and Tracy F. Flint, and Carter G. Phillips, John E. Gartman and John W. Thornburgh, Fish & Richardson, PC, Juanita Rose Brooks and Joseph P. Reid, Thomas Andrew Culbert and Stephen P. McGrath, Microsoft Corporation.   

For Appellee:  John M. Desmarais, Kirkland & Ellis, LLP, Paul A. Bondor and Michael P. Stadnick.   

Petition for review by veterans organizations, involving a procedure promulgated by the Secretary of Veterans Affairs with respect to the determination of certain claims, is granted and the procedure of Fast Letters 07-19 and 08-24 is set aside where the procedure does not comply with the extant Regulations as certain regional office decisions are redetermined by the Compensation and Pension Service without the knowledge and participation of the claimant, and was not implemented in compliance with the requirements of the Administrative Procedure Act. 

Read Military Order of the Purple Heart of the USA v. Sec'y of Veterans Affairs, No. 08-7076

Appellate Information

Appeal from:  Department of Veterans Affairs
Decided September 10, 2009

Judges

Before Newman, Mayer, and Schall, CIrcuit Judges. 
Opinion by Newman, Circuit Judge.   

Counsel

For Appellant:  William E. Doyle, Jr., and Barton F. Stichman 

For Appellee: Tara K. Hogan, Trial Attorney, Commercial Litigation Branch, Civil DIvision, United States Department of Justice, Michael F. Hertz, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Kirk Manhardt, Assistant Director, David R. McLenachen, Deputy Assistant General Counsel.

Fresenius USA, Inc. v. Baxter Int'l, Inc., No. 08-1306

In a patent case involving a hemodialysis machine integrated with a touch screen user interface, district court's ruling that plaintiffs infringed claims of three patents asserted by defendants is affirmed in part, reversed in part, and vacated in part and remanded where: 1) plaintiffs failed to demonstrate that the structures corresponding to certain means-plus-function claim limitations were present in the prior art, and thus they failed to prove that certain patent claims were invalid; 2) judgment as a matter of law (JMOL) as to all other asserted claims required reversal; 3) although the district court did not abuse its discretion when it permanently enjoined plaintiffs, the injunction is nevertheless vacated for reconsideration in light of the prior rulings; and 4) the royalty award is also vacated for reconsideration. 

Read Fresenius USA, Inc. v. Baxter Int'l, Inc., No. 08-1306

Appellate Information

Appeal from United States District Court for the Northern District of California
Decided September 10, 2009

Judges

Before Newman, Gajarsa, and Dyk, CIrcuit Judges. 
Opinion by Gajarsa, Circuit Judge.   

Counsel

For Appellant: Juanita R. Brooks, Fish & Richardson PC, Michael E. Florey, Mathias W. Samuel, Deanna J. Reichel, and Robert E. Hillman 

For Appellee: William F. Lee, Wilmer Cutler Pickering Hale and Dorr LLP, Bharat R. Ramamurti, William G. McElwain, Jonathon G. Cedarbaum, Michael J. Abernathy, and Sanjay K. Murthy

Rizzo v. Shinseki, No., 09-7026

The United States Court of Appeals for Veterans Claims judgment affirming the decision of the Board of Veterans' Appeals (Board) denying petitioner's service-connection for an eye disability is affirmed as absent some challenge to the expertise of a Department of Veterans Affairs (VA)expert, there are no statutory or other requirement that VA must present some affirmative evidence of a physician's qualifications in every case as a precondition for the Board's reliance upon that physician's opinion.    

Read Rizzo v. Shinseki, No., 09-7026

Appellate Information

Appeal from:  United States Court of Appeals for Veterans Claims
Decided September 8, 2009

Judges

Before Michel, Chief Judge, Lourie and Rader, CIrcuit Judges. 
Opinion by Rader, Circuit Judge.   

Counsel

For Appellant:  Douglas J. Rosinski, Ogletree, Deakins, Nash, Smoak & Stewart PC

For Appellee: Allison Kidd-Miller, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice.

Nystrom v. Trex Co., Inc., No. 09-1026

District court's ruling that plaintiff was not barred by res judicata from litigating his infringement claim against the defendants and finding that there was no infringement of the U.S. Patent No. 5,474831 (the '831 patent) is affirmed on alternative grounds where the plaintiff waived his right to pursue an infringement claim under the doctrine of equivalents in the first infringement suit brought against the defendant.   

Read Nystrom v. Trex Co., Inc., No. 09-1026

Appellate Information

Appeal from:  United States District Court for the Eastern District of Virginia
Decided September 8, 2009

Judges

Before Michel, Chief Judge, Rader and Prost, CIrcuit Judges. 
Opinion by Rrader, Circuit Judge.   

Counsel

For Appellant: Joseph S. Presta, Nixon & Vanderhye, PC.    

For Appellees: Patrick J. Coyne, Finnegan, Henderson, Farabow, Garrett & Dunner, LLP. 

Martek BioSci. Corp. v. Nutrinova, Inc., No. 08-1459

In a patent infringement action involving patents relating to specified microorganisms that are useful for the commercial production of an essential omega-3 fatty acid, district court's judgment is affirmed in part and reversed in part where: 1) district court did not err in denying defendant's motion for judgment as a matter of law (JMOL) as substantial evidence support the jury's finding that the certain patent claims were entitled to the priority date of a 1988 application; 2) district court did not err in denying defendant's JMOL motion as plaintiff presented substantial evidence of expert testimony based on the accused process supporting the jury's infringement verdict; 3) district court did not abuse its discretion when it determined that defendant could not corroborate an expert's testimony and thus excluded defendant's evidence of prior inventorship; 4) district court did not commit legal error in construing the term "non-chloride sodium salt"; 5) district court erred in granting the motion for JMOL as to certain patent claims as evidence supports the jury's implicit finding that one need not perform undue experimentation to practice these claims, as well as the jury's ultimate conclusion that defendant failed to prove invalidity of those claims by clear and convincing evidence; and 6) district court's claim construction for the term "animal" is erroneous as the proper construction is the one explicitly provided by the patentee.   

Read Martek BioSci. Corp. v. Nutrinova, Inc., No. 08-1459

Appellate Information

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

Decided September 3, 2009

Judges

Before Newman, Lourie, Rader, Gajarsa,  Moore, CIrcuit Judges. 
Opinion by Gajarsa, Circuit Judge.   

Counsel

For Appellant: Gregory A. Castania, Jones Day, Gidon D. Stern, and Samuel B. Abrams, Dechert LLP

For Appellees: George Pazuniak, Womble Carlyle Sandridge & Rice PLLC, Oleh V. Bilynsky and Stephen J. Mackenzie

In re Skvorecz, No. 08-1221

Decision of the PTO and the Board of Patent Appeals and Interferences (Board) rejecting claims in petitioner's application to reissue a patent, involving a device for maintaining hot food, is reversed and remanded where: 1) anticipation cannot be found, as a matter of law, if any claimed element or limitation is not present in the reference; 2) Board was incorrect in holding that a claim was indefinite and a written description requirement was not met as such conclusion was unsupported by substantial evidence. 

Read In re Skvorecz, No. 08-1221

 Appellate Information

Appeal from:  United States Patent and Trademark Office, Board of Patent Appeals and Interferences

Decided September 3, 2009

Judges

Before Newman, Friedman, and Mayer, CIrcuit Judges. 
Opinion by Newman, Circuit Judge.   

Counsel

For Appellant: Baker & Hostetler LLP

For Appellees: William LaMarca, Associate Solicitor, Office of the Solicitor, United States Patent and Trademark Office. 

In a class action suit brought by landowners against the Bureau of Reclamation involving contracts authorizing landowners to use stored groundwater, dismissal on the merits is affirmed where: 1) the word "term" in the plaintiffs' contract refers to the designated 10-year term set forth in the contracts and does not include any periods of renewal following that initial 10-year term; 2) plaintiffs' contracts are not long-term contracts within the meaning of the 1939 Act, 43 U.S.C. section 485h-3 and are therefore not entitled to the benefits accorded to such contracts under section 485h-1; 3) plaintiffs' argument that their contracts are "repayment contracts" is rejected as it is contrary to section 9(e); and 4) plaintiffs are not entitled to the statutory benefits accorded to repayment contracts and long term 9(e) contracts under the 1939 and 1956 Acts, and because those benefits turn on whether the plaintiffs' contracts include a principal repayment obligation or have a contract term greater than 10 years, it is sufficient to note that the Reclamation Reform Act and the pre-1986 excess land limitations do not change the fact that the plaintiffs hold short-term 9(e) contracts.       

Read Grant County Black Sands Irrigation Dist. v. Bureau of Reclamation, No. 08-1354

Appellate Information

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

Decided September 2, 2009

Judges

Before Schall, Bryson, and Linn, CIrcuit Judges. 
Opinion by Bryson, Circuit Judge.   

Counsel

For Appellant: Ronald Ady, Christensen Law Group, L.P., of Salt Lake City, Utah

For Appellees: Allen M. Brabender, Trial Attorney, Environment and Natural Resources Division, United States Department of Justice, of Washington, DC

Ningbo Dafa Chem. Fiber Co., Ltd. v. US, No. 09-1056

In a case involving an antidumping investigation of recycled polyester staple fiber (PSF) from China, a United States Court of International Trade's judgment upholding the imposition of antidumping duties on appellant is affirmed as the United States Department of Commerce's Final Determination was supported by substantial evidence and not contrary to law in its methodology and resulting color-specific PET flake valuations. 

Read Ningbo Dafa Chem. Fiber Co., Ltd. v. US, No. 09-1056

Appellate Information

Appeal from:  United States Court of International Trade

Decided September 2, 2009

Judges

Before Michel, Chief Judge, Linn, Circuit Judge, and St. Eve, District Judge. 
Opinion by St. Eve, District Judge

Counsel
For Appellant: Gregory S. Menegaz, DeKieffer & Horgan, of Washington, DC

For Appellees: Stephen C. Tosini, Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC