Federal Circuit: November 2009 Archives
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November 2009 Archives

Jackson v. Shinseki, No. 09-7015

The United States Court of Appeals for Veterans Claims decision that attorney-petitioner was not entitled to fees for the representation of her veteran-client in connection with a service disability claim is affirmed as, the client does not qualify for fees as the client's claim did not include the requisite evidence to support a total disability rating based on individual unemployability claim before the Board of Veteran Appeals, and as such, his claim was not part of the case as defined in 38 U.S.C. section 5904(c).  

Read Jackson v. Shinseki, No. 09-7015

Appellate Information

Appeal from:  United States Court of Appeals for Veterans Claims

Decided November 25, 2009

Judges

Before Rader, Bryson, and Linn, Circuit Judges

Opinion by Circuit Judge Rader

Counsel

For Appellant:   Kenneth M. Carpenter

For Appellee:  Lauren A. Weeman, Commercial Litigation Branch, US Department of Justice. 

Dorsey v. Office of Pers. Mgmt., No. 09-3071

Merit Systems Protection Board's denial of petitioner's request for a survival annuity benefit based on the federal service of her late spouse is affirmed as, the Board's determination that petitioner's husband failed to elect a survivor annuity benefit during the two-year window provided for by statute is supported by substantial evidence.   

Read Dorsey v. Office of Pers. Mgmt., No. 09-3071

Appellate Information

Appeal from:  Merit Systems Protection Board

Decided November 25, 2009

Judges

Before Newman, Mayer, Prost, Circuit Judges

Opinion by Circuit Judge Prost

Counsel

For Appellant:  Alice A. Dorsey, Rocky Ridge, Maryland

For Appellee:  John S. Groat, Commercial Litigation Branch, US Department of Justice. 

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

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

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.

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

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. 

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

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.

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

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

Barela v. Shinseki, No. 09-7002

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

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

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