by Dennis Crouch
Many of us have been criticizing the Federal Circuit new proclivity to issue no-opinion judgment – particularly in patent cases stemming from the Patent Trial and Appeal Board. The Court appears to be experimenting with a new method – short non-precedential decisions. I highlight two decisions released on August 17:
- Gold Standard Instruments v. Endodontics, Appeal No. 16-2597 (Fed. Cir. 2017) (4-pages, affirming PTAB)
- Cronos Tech. v. Expedia, Appeal No., 16-2528 (Fed. Cir. 2017) (3-pages, affirming District Court)
In Gold Standard, the PTAB had found all claims of the challenged patent obvious. IPR2015-00632, U.S. Patent No. 8,727,773. That decision is now affirmed on appeal. In the four-page appellate decision identifies the evidence sufficient to support the Board’s factual conclusions (substantial evidence standard) and thus affirms.
Similarly, in Cronos Tech., the district court had granted summary judgment of non-infringement of U.S. Patent No. 5,664,110. On appeal, the Federal Circuit affirmed in a three-page opinion that essentially adopts the district court reasoning with some explanation.
Both appeals identify exactly why the patentee lost and why the lower judicial opinion was correct and should serve as models of future panels concerned with no-opinon judgments.
Although released on the same day, the two opinions are written by two completely different judicial panels – a hopeful indication that the court is considering this approach as a replacement to its R.36 approach that is now receiving so much criticism.