Vacatur and Remand Is Not for Everyone

Customedia Tech., LLC v. Dish Network Corp.., Appeal Nos. 2018-2239, -2240, -2310, 2019-1000, -1001, -1002, -1027 and -1029 (Fed. Cir., Nov. 1, 2019).

Photo of John P. Isacson
John P. Isacson

The day after the Federal Circuit issued its decision in Arthrex, Inc. v. Smith & Nephew, Inc., Appeal No. 2018-2140 (Fed. Cir., Oct. 31, 2019), the Federal Circuit issued a pair of precedential orders in appeals of inter partes reviews and covered business method reviews.  Appellant Customedia Tech sought to avail itself of the Arthrex decision to have adverse decisions vacated on the grounds that the Patent Trial and Appeals Board was constituted in a manner that violated the Appointments Clause of the U.S. Constitution.

The Federal Circuit denied the motions to vacate and remand on the basis that the Appointments Clause argument was not raised in an opening brief or in a motion filed prior to the opening brief.  Thus, the Federal Circuit deemed the issue forfeited.

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