Federal Circuit: January 2010 Archives
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January 2010 Archives

Wilkerson v. Sec'y of Health & Human Serv., No. 09-5090

Decision of the Court of Federal Claims affirming its Special Master's rejection of a petition for compensation under the National Childhood Vaccine Injury Act is affirmed where: 1) Markovich controls this case and under it the Chief Special Master correctly dismissed the petition as untimely; and 2) the grounds upon which plaintiff seeks to distinguish or avoid Markovich are unpersuasive, as plaintiff's petition was filed more than thirty-six months after the occurrence of the first symptom of the child's injury.     

Read Wilkerson v. Sec'y of Health & Human Serv., No. 09-5090

Appellate Information

Appealed from: United States Court of Federal Claims

Decided January 27, 2010

Judges

Before: MayerFriedman, and Gajarsa, Circuit Judges

Opinion by  Friedman,  Circuit Judge

Counsel

For Appellant:   Kevin P. Conway, Homer & Chin-Caplan PC

For Appellee:  Traci R. Patton, US Department of Justice, Torts Branch

Blakley v. US, No. 09-5047

Decision of the Court of Federal Claims awarding plaintiff $10,732 in attorney's fees under the Internal Revenue Code, arising from the imposition of a transfer tax on machine guns manufactured by plaintiff, is reversed as neither the ATF's action in denying the refund on the basis that the firearm had not been misclassified, nor the government's action in defending the denial of the refund on the same ground, was without substantial justification.     

Read Blakley v. US, No. 09-5047

Appellate Information

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

Decided January 27, 2010

Judges

Before: Mayer, Plager and Dyk, Circuit Judges

Opinion by  Dyk,  Circuit Judge

Counsel

For Appellant:   Robert G. Nath, Robert G. Nath PLLC

For Appellee:  Teresa T. Milton, US Department of Justice, Tax Division

Boehringer Ingelheim Int'l GMBH v. Barr Lab, Inc., No. 09-1032

In a patent infringement suit involving claims for certain tetrahydrobenzthiazole compounds for treatment of signs and symptoms of idiopathic Parkinson's disease, district court's judgment of invalidity is reversed and remanded where: 1) plaintiff's terminal disclaimer cannot overcome obviousness-type double patenting based on the '086 patent because the terminal disclaimer was filed after the expiration of the '086 patent; but 2) the district court incorrectly concluded that the safe-harbor provision of 35 U.S.C. section 121 is inapplicable in this case. 

Read Boehringer Ingelheim Int'l GMBH v. Barr Lab, Inc., No. 09-1032

Appellate Information

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

Decided January 25, 2010

Judges

Before: LinnProst and Dyk, Circuit Judges

Opinion by  Linn,  Circuit Judge

Counsel

For Appellant:   Bruce M. Wexler, Paul Hastings Janofsky & Walker LLP

For Appellee:  Shannon M. Bloodworth, Perkins Coie LLP

Therasense, Inc. v. Becton, Dickinson & Co., No. 09-1008

In a patent infringement suit involving a patent directed to electrochemical sensors for measuring glucose levels in blood, district court's entry of judgment that certain claims of plaintiff's '890 patent are infringed but are invalid is affirmed where: 1) although the district court's instruction on the law of anticipation was legally erroneous, the jury could not have returned a different verdict as the asserted claims would have been obvious as a matter of law; and 2) defendant's cross-appeal is dismissed, as there is no basis for a cross-appeal as to claims of noninfringement where the district court has entered a judgment of invalidity as to all of the asserted claims. 

Read Therasense, Inc. v. Becton, Dickinson & Co., No. 09-1008

Appellate Information

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

Decided January 25, 2010

Judges

Before: Linn, Friedman, and Dyk, Circuit Judges

Opinion by  Dyk,  Circuit Judge

Counsel

For Appellant: Rohit K. Singla, Mungler Tolles & Olson LLP

For Appellee:  Bradford J. Badke, Ropes & Gray LLP

Chrysler Corp. v. US, No. 09-1267

Judgment of the United States Court of International Trade upholding the denial by United States Custom and Border Protection of a refund on the Harbor Maintenance Tax (HMT) allegedly paid on exports before July 1, 1990 is affirmed where: 1) Customs retains the authority under the HMT statute to amend and enforce its refund regulations as applied to export HMT; 2) Chrysler has failed to raise a genuine issue of fact regarding the validity of the regulation or its compliance with that regulation; and 3) the trade court clearly acted within its discretion in declining to impose an adverse inference.   

Read Chrysler Corp. v. US, No. 09-1267

Appellate Information

Appealed from: United States Court of International Trade

Decided January 19, 2010

Judges

Before: Newman, Lourie, and Bryson, Circuit Judges

Opinion by  Lourie,  Circuit Judge

Counsel

For Appellant: Alan Goggins, Barnes Richardson & Colburn

For Appellee:  Tara K. Hogan, US Department of Justice, Commercial Litigation Branch

Schindler Elevator Corp. v. Otis Elevator Co. , No. 09-1146

In a patent infringement suit involving a patent directed to an elevator system that recognizes a user when the individual enters an entry location of a building then dispatches an elevator to bring the user to a destination floor based on user-specific data, district court's entry of summary judgment in favor of defendant of noninfringement of the '094 patent is vacated and remanded as, the district court erred in construing the terms " information transmitter" and "recognition device" to exclude any "personal action" by an elevator user other than "walking into the monitored area."  

Read Schindler Elevator Corp. v. Otis Elevator Co. , No. 09-1146

Appellate Information

Appealed from: United States District Court for the Southern District of New York

Decided January 15, 2010

Judges

Before:  Linn, Dyk, and Friedman, Circuit Judges

Opinion by  Linn,  Circuit Judge

Counsel

For Appellant:  Joseph R. Re, Knobbe Martens Olson & Bear LLP

For Appellee:  Mark L. Levine, Bartlit Beck Herman Palenchar & Scott LLP

Moberly v. Sec'y of Health & Human Serv., No. 09-5057

In plaintiff's petition seeking compensation on behalf of her infant daughter under the National Childhood Vaccine Injury Act, 42 U.S.C. sections 300aa-1 and 300aa-34, claiming that the DPT vaccine caused her daughter's seizures, decision by the Court of Federal Claims upholding the special master's finding that the plaintiffs failed to establish causation is affirmed where: 1) determination by the special master and the Court of Federal Claims that no treating physician ever drew a causal link between the child's seizures and the vaccination is neither arbitrary not capricious; 2) the special master did not err in concluding that the blood-brain barrier theory did not support the plaintiffs' claim of causation; 3) the special master properly held that the plaintiffs could not rely on the NCES (British epidemiological study) to prove causation because they failed to establish that the child would have been regarded as a "case child" within the scope of that study; and 4) the special master applied the correct legal standard and found, based in part on the unconvincing nature of the expert evidence and the lack of credibility of the plaintiffs' expert, that the plaintiffs failed to prove causation by a preponderance of the evidence.   

Read Moberly v. Sec'y of Health & Human Serv., No. 09-5057

Appellate Information

Appealed from: United States Court of Federal Claims

Decided January 13, 2010

Judges

Before:  Bryson, Prost, and Moore, Circuit Judges

Opinion by  Bryson,  Circuit Judge

Counsel

For Appellant:  Kevin P. Conway, Homer and  Chin-Caplan, PC

For Appellee:  Voris, E. Johnson, Jr., US Department of Justice, Civil Division

Nebraska Pub. Power Dist. v. US, No. 07-5083

In an action for a breach of contract against the United States over a dispute involving the interaction between a provision of the Nuclear Waste Policy Act (NWPA) and a government contract with a utility company that operates a nuclear power facility, an order of the Court of Federal Claims finding that the prior D.C. Circuit's rulings were void (and therefore not entitled to res judicata effect) because it lacked jurisdiction in the previous statutory review proceedings is reversed and remanded as the D.C. Circuit had jurisdiction to review the Department of Energy's (DOE) compliance with the NWPA and the mandamus order issued by the D.C. Circuit in that proceeding is not void. 

Read Nebraska Pub. Power Dist. v. US, No. 07-5083

Appellate Information

Appealed from: United States Court of Federal Claims

Decided January 12, 2010

Judges

Before:  Michel, Chief Judge, Newman, Mayer, Lourie, Rader, Schall, Bryson, Linn, Prost, Gajarsa, Dyk, and Moore, Circuit Judges

Opinion by  Bryson,  Circuit Judge

Counsel

For Appellant:  Jay E. Silberg, Pilsbury Winthrop Shaw Pittman LLP

For Appellee:   Harold D. Lester, Assistant Director, Civil Division, US Department of Justice.

Barnick v. US, No. 08-5074

Judgment of the United States Court of Federal Claims upholding the decision of the Air Force Board of Correction of Military Records (AFBCMR) denying additional backpay and disability benefits is affirmed where: 1) the Court of Federal Claims did not err in concluding that the AFBCMR's failure to award additional incapacitation pay was not arbitrary, capricious, or contrary to law; 2) the Court of Federal Claims did not err in finding that the AFBCMR's decision not to award claimant constructive active duty pay was not arbitrary, capricious, or contrary to law; and 3) to the extent that claimant disagrees with the Air Force's decision not to reimburse certain expenses, the trial court's decision does not preclude claimant from filing another claim with the court.     

Read Barnick v. US, No. 08-5074

Appellate Information

Appealed from: United States Court of Federal Claims

Decided January 8, 2010

Judges

Before:  Gajarsa, Dyk, and Moore, Circuit Judges

Opinion by  Dyk, Circuit Judge

Counsel

For Appellant:   Louis P. Font, Font & Glazer

For Appellee:   Armando A. Rodriguez-Feo

Wyeth & Elan Pharma Int'l Ltd.v. Kappos, No. 09-1120

In a case involving plaintiffs' patent applications involving inventions that treat Alzheimer's disease, district court's ruling that plaintiffs were entitled to extended patent term adjustments under 35 U.S.C. section 154(b) due to the Patent and Trademark Office's (PTO) delay in prosecuting their patent applications is affirmed as section 154(b) expressly permits this legal relief as the statutory language is clear, unambiguous, and intolerant of the PTO's suggested interpretation. 

Read Wyeth & Elan Pharma Int'l Ltd.v. Kappos, No. 09-1120

Appellate Information

Appealed from: United States District Court for the District of Columbia

Decided January 7, 2010

Judges

Before:  Rader, Plager, and Moore, Circuit Judges

Opinion by Rader, Circuit Judge

Counsel

For Appellant:   Christine N. Kohl, US Department of Justice

For Appellee:   Patricia A. Carson, Kaye Scholer LLP

Dow v. Gen. Serv. Admin. , No. 08-3352

Decision of the Merit Systems Protection Board dismissing, for lack of jurisdiction, petitioner's challenge to the General Services Administration's refusal to hire him is affirmed where: 1) the record shows that the agency's reason for not hiring petitioner had nothing to do with the Outstanding Scholar Program, but was based on the agency's conclusion that he was not suitable for the position that he sought; and 2) the government's motion to vacate and remand is denied as the case is not moot as there continues to be a live controversy between the parties over whether the Administration's treatment of petitioner violated Part 300 of Title 5 of the Code of Federal Regulations and, if it did, what relief should be obtained.     

Read Dow v. Gen. Serv. Admin. , No. 08-3352

Appellate Information

Appealed from: Merit Systems Protection Board

Decided January 6, 2010

Judges

Before:  Lourie, Friedman, and Prost, Circuit Judges

Opinion by Friedman, Circuit Judge

Counsel

For Appellant: Michael J. Kator, Kator Parks & Weiser, PLLC

For Appellee:   Meredyth Cohen Havasy, US Department of Justice, Commercial Litigation Branch

Delgado v. Office of Pers. Mgmt., No. 09-3254

Decision of the Merit Systems Protection Board affirming the Office of Personnel Management's decision to terminate a former US Postal Service employee's disability retirement annuity on the basis that he had been restored to earning capacity is vacated and remanded as, although petitioner's award of back pay constitutes income under the provisions of 5 C.F.R. section 831.1209, the Board did not explicitly determine for which year(s) the award should be considered income for purposed of determining earning capacity under 5 U.S.C. section 8337(d).     

Read Delgado v. Office of Pers. Mgmt., No. 09-3254

Appellate Information

Appealed from: Merit Systems Protection Board

Decided January 6, 2010

Judges

Before:  Newman, Lourie and Linn, Circuit Judges

Per Curium Opinion

Counsel

For Appellant:  Ismael Delgado, pro se

For Appellee:   Jane C. Dempsey, US  Department of Justice, Commercial Litigation Branch

Slattery v. Dep't of Justice, No. 09-3095

A decision of the Merit Systems Protection Board holding that the INS's non-selection of petitioner for any of the law enforcement position for which she applied is not a violation of a Negotiated Settlement and Last Chance Agreement (NSLCA) is affirmed as the NSLCA does not require the agency to ignore petitioner's history of her arrest for obtaining money under false pretenses, and "good faith" does not require pretending that this history does not exist.     

Read Slattery v. Dep't of Justice, No. 09-3095

Appellate Information

Appealed from: Merit Systems Protections Board

Decided January 6, 2010

Judges

Before:  Michel, Chief Judge, Newman and Dyk, Circuit Judges

Opinion by Newman, Circuit Judge

Counsel

For Appellant:  Thomas G. Roth, Law Offices of Thomas G. Roth

For Appellee:   Michael N. O'Connell, US Department of Justice, Commercial Litigaiton Branch

In a patent infringement suit involving a cardiac defibrillator, district court's sua sponte dismissal of plaintiff-Philips' suit against the defendant is reversed and remanded where: 1) the district court ignored plaintiff's request to present new evidence and never heard its argument that its patent had priority, the court did not give plaintiff a full and fair opportunity to ventilate the issues raided in its complaint and improperly entered summary judgment under Ninth Circuit law, and because the parties genuinely disputed issues of material fact as to written description and anticipation; and 2) the district court erred in holding that the Board can apply 37 C.F.R. section 41.200(b) and disregard the original disclosure when a patentee challenges an applicant's written description in an interference proceeding.   

Read Koninklijke Philips Elec., N.V. v. Cardiac Sci. Operating Co., No. 09-1241

Appellate Information

Appealed from: United States District Court for the Western District of Washington

Decided January 5, 2010

Judges

Before:  Michel, Chief Judge, and Friedman and Gajarsa, Circuit Judges

Opinion by Gajarsa, Circuit Judge

Counsel

For Appellant:  J. Michael Jakes, Finnegan Henderson Farabow Garrett & Dunner, LLP

For Appellee:   Eric H. Chadwick, Patterson Thuente Skaar & Christensen, PA

Outer Circle Prod. v. US, No. 09-1179

Judgment of the United States Court of International Trade classifying petitioner's bottle and jug wraps under subheading 4202.92.90 of the Harmonized Tariff Schedule of the United States (HTSUS) is reversed because the subject articles "organize, store, protect, or carry food or beverages," the proper classification is HTSUS subheading 3924.10.50.   

Read Outer Circle Prod. v. US, No. 09-1179

Appellate Information

Appealed from: United States Court of International Trade

Decided January 5, 2010

Judges

Before:  Newman, Mayer, and Moore, Circuit Judges

Opinion by Mayer, Circuit Judge

Counsel

For Appellant:  Robert B. Silverman, Grunfeld Desierio Lebowitz Silverman & Klestadt, LLP

For Appellee:   Marcella Powell, US Department of Justice, International Trade Field Office

Armstrong v. Dep't of the Treasury, No. 09-3155

In an action arising from claimant's removal for unlawfully accessing computer databases while serving as a criminal investigator for the Treasury Inspector General for Tax Administration (TIGTA), a decision of the Merit Systems Protection Board (MSPB) denying claimant's petition for review of an AJ's decision dismissing his case under a settlement agreement with the TIGTA is vacated in part, affirmed in part and remanded where: 1) MSPB's denial of petition for review is vacated and remanded because the Board improperly conflated the issue of timeliness with the ultimate decision on the merits of petitioner's claim; and 2) MSPB's decision with respect to its compliance decision is affirmed as it correctly concluded that petitioner abandoned any appeal from the AJ's separate decision that his employing agency, the TIGTA, had not breached the settlement agreement.     

Read Armstrong v. Dep't of the Treasury, No. 09-3155

Appellate Information

Appealed from: Merit Systems Protection Board

Decided January 4, 2010

Judges

Before:  Michel, Chief Judge, and Plager and Linn, Circuit Judges

Opinion by Michel, Chief Judge

Counsel

For Appellant:  Kevin E. Byrnes, Schnader Harrison Segal & Lewis, LLP

For Appellee:   Christopher A. Bowen, US Department of Justice, Commercial Litigation Branch

Golz v. Shinseki, No. 09-7039

Decision of the United States Court of Appeals for Veterans Claims (Veteran Court) affirming the decision of the Board of Veterans' Appeals denying petitioner's claim for service connection for post-traumatic stress disorder is affirmed as, the Veterans Court correctly interpreted 38 U.S.C. sections 5103A and 3.159(c) in holding that VA is not required to obtain disability records from SSA if VA determines, without review of the actual records, that there is no reasonable possibility that such records are relevant to the veteran's claim for VA disability compensation.   

Read Golz v. Shinseki, No. 09-7039

Appellate Information

Appealed from:  United States Court of Appeals for Veteran Claims

Decided January 4, 2010

Judges

Before: Bryson, Prost, and Moore, Circuit Judges

Opinion by Moore, Circuit Judge

Counsel

For Appellant:  Sean A. Ravin

For Appellee:   Steven M. Mager, US Department of Justice, Commercial Litigation Branch