Customedia Technologies, LLC v. Dish Network Corporation

941 F.3d 1173

Opinion

United States Court of Appeals for the Federal Circuit

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CUSTOMEDIA TECHNOLOGIES, LLC, Appellant

v.

DISH NETWORK CORPORATION, DISH NETWORK LLC, Appellees

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2018-2239

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Appeal from the United States Patent and Trademark Office, Patent Trial and Appeal Board in No. CBM2017- 00023. ---------------------------------------------------------------------------------

CUSTOMEDIA TECHNOLOGIES, LLC, Appellant

v.

DISH NETWORK CORPORATION, DISH NETWORK LLC,

Cross-Appellants

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2018-2240, -2310

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2 CUSTOMEDIA TECHNOLOGIES, LLC v. DISH NETWORK CORPORATION

Appeals from the United States Patent and Trademark Office, Patent Trial and Appeal Board in No. IPR2017- 00454. ---------------------------------------------------------------------------------

CUSTOMEDIA TECHNOLOGIES, LLC, Appellant

v.

DISH NETWORK CORPORATION, DISH NETWORK LLC, Appellees

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2019-1000

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Appeal from the United States Patent and Trademark Office, Patent Trial and Appeal Board in No. CBM2017- 00032.

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CUSTOMEDIA TECHNOLOGIES, LLC, Appellant

v.

DISH NETWORK CORPORATION, DISH NETWORK LLC,

Cross-Appellants

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2019-1002, -1003, -1027, -1029

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CUSTOMEDIA TECHNOLOGIES, LLC v. DISH NETWORK 3 CORPORATION

Appeals from the United States Patent and Trademark Office, Patent Trial and Appeal Board in Nos. IPR2017- 00717 and IPR2017-00724.

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ON MOTION

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RAYMOND WILLIAM MORT, III, The Mort Law Firm, PLLC, Austin, TX, for appellant.

ELIOT DAMON WILLIAMS, Baker Botts LLP, Palo Alto, CA, for appellees. Also represented by GEORGE HOPKINS GUY, III; ALI DHANANI, MICHAEL HAWES Houston, TX.

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PER CURIAM.

ORDER

In each of the above-captioned appeals, Customedia Technologies, LLC submits a notice of supplemental authority identifying this court’s recent decision in Arthrex, Inc. v. Smith & Nephew, Inc., No. 2018-2140 (Fed. Cir. Oct. 31, 2019). That decision vacated and remanded for the matter to be decided by a new panel of Administrative Patent Judges (“APJs”) at the Patent Trial and Appeal Board after this court concluded that the APJs’ appointments violated the Appointments Clause. Customedia’s letters seek to assert the same challenge here, which the court construes as a motion to vacate the Board decisions here and remand in accordance with Arthrex.

We conclude that Customedia has forfeited its Appointments Clause challenges. “Our law is well established that arguments not raised in the opening brief are waived.” SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1319 (Fed. Cir. 2006) (citing Cross Med. Prods., Inc. v. Medtronic Sofamor Danek, Inc., 424 F.3d 1293, 1320–21 n.3 (Fed. Cir. 2005)). That rule applies with equal force to 4 CUSTOMEDIA TECHNOLOGIES, LLC v. DISH NETWORK CORPORATION

Appointments Clause challenges. See, e.g., Island Creek Coal Co. v. Wilkerson, 910 F.3d 254, 256 (6th Cir. 2018); Turner Bros., Inc. v. Conley, 757 F. App’x 697, 699–700 (10th Cir. 2018); see also Arthrex, slip op. at 29 (emphasizing that Appointments Clause challenges are not jurisdictional and that the court was granting relief only when the party had properly raised the challenge on appeal). Customedia did not raise any semblance of an Appointments Clause challenge in its opening briefs or raise this challenge in a motion filed prior to its opening briefs. Consequently , we must treat that argument as forfeited in these appeals.

Accordingly, IT IS ORDERED THAT: The motions to vacate and remand are denied.

FOR THE COURT

November 1, 2019 /s/ Peter R. Marksteiner Date Peter R. Marksteiner Clerk of Court