Customedia Technologies, LLC v. Dish Network Corporation

941 F.3d 1174

• Court: Court of Appeals for the Federal Circuit
• Decided: November 1, 2019
• Docket: 19-1001
• Status: Published

Opinion

United States Court of Appeals for the Federal Circuit ______________________

CUSTOMEDIA TECHNOLOGIES, LLC, Appellant

v.

DISH NETWORK CORPORATION, DISH NETWORK LLC, Appellees ______________________

2019-1001 ______________________

Appeal from the United States Patent and Trademark Office, Patent Trial and Appeal Board in No. CBM2017- 00019. ______________________

ON MOTION ______________________

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. ______________________

PER CURIAM. ORDER 2 CUSTOMEDIA TECHNOLOGIES, LLC v. DISH NETWORK CORPORATION

Customedia Technologies, LLC moves to vacate and re- mand in light of 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 motion seeks to assert the same challenge here. We conclude that Customedia has forfeited its Appoint- ments Clause challenge. “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. Med- tronic Sofamor Danek, Inc., 424 F.3d 1293, 1320–21 n.3 (Fed. Cir. 2005)). That rule applies with equal force to Ap- pointments 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 Ap- pointments 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 chal- lenge in its opening brief or raise this challenge in a motion filed prior to its opening brief. Consequently, we must treat that argument as forfeited in this appeal. Accordingly, IT IS ORDERED THAT: The motion to vacate and remand is denied. CUSTOMEDIA TECHNOLOGIES, LLC v. DISH NETWORK 3 CORPORATION

FOR THE COURT

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