If you don't appeal an issue from an adverse judgment, are you going to be bound by the decision on that issue in future cases? This can often be an important question to consider when deciding whether and what issues to appeal. But sometimes, the chance to appeal to avoid any possible issue preclusive effect has already passed because of earlier events, as this week's case of the week illustrates.
Case of the (recent) week:
Panel: Judges Hughes, Linn, and Stoll, with
You should read this case if: you have a matter involving issue preclusion
Parallel proceedings on the same patent have been commonplace since
On appeal, the Federal Circuit rejected Best Medical's argument that the Board had no authority to address claim 1 after the examiner's rejection in the reexam. Because Best Medical had not filed a statutory disclaimer, the Federal Circuit agreed that the reexam cancellation of claim 1 was not yet final at the time the Board entered its final written decision. Indeed, because of that non-finality, the Federal Circuit reasoned that the Board was obligated to address claim 1 in its final written decision—the
The Federal Circuit also rejected Best Medical's request to vacate the Board's decision on claim 1 under the
The Federal Circuit disagreed that a case or controversy existed because the IPR decision on claim 1 could have issue preclusive effects in future litigation. Best Medical pointed to another reexam involving a related patent in which the examiner had stated it was "essentially bound by the Board's reasoning" in the IPR for certain obviousness issues related to claim 1. The Federal Circuit reasoned that Best Medical would be free to appeal those issues in that other reexam—"we know of no cases that would apply collateral estoppel in these circumstances" involving "non-appealable issues and judgments." And even were that not so, the Court explained that "the potential for collateral consequences is insufficient, on its own, to confer standing" to appeal.
OTHER WEEKLY STATS
Precedential opinions: 2
Non-precedential opinions: 2
Rule 36: 1
Longest pending case from argument:
Shortest (non-Rule 36) pending case from argument:In re: Killian, No. 21-2113 (110 days)
Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.
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