Casez17-1665
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`Document'44-1
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`Filed: 09/10/2018
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`(1 of 17)
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`”Cliniteh étates Qtnurt of Qppealfi
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`tor the jfeheral QEirtut’t
`
`IXI IP, LLC,
`Appellant
`
`V.
`
`SAMSUNG ELECTRONICS CO., LTD., SAMSUNG
`ELECTRONICS AMERICA, INC., APPLE INC.,
`Appellees
`
`2017-1665
`
`Appeal from the United States Patent and Trademark
`Office, Patent Trial and Appeal Board in No. IPR2015-
`01444.
`
`Decided: September 10, 2018
`
`GOUTAM PATNAIK, Pepper Hamilton LLP, Washing-
`ton, DC, argued for appellant. Also represented by
`BRADLEY THOMAS LENNIE; WILLIAM D. BELANGER, Boston,
`MA.
`
`MICHAEL J. MCKEON, Fish & Richardson, PC, Wash-
`ington, DC, argued for appellees. Also represented by
`CRAIG E. COUNTRYMAN, OLIVER RICHARDS, San Diego, CA.
`
`Before O’MALLEY, MAYER, and REYNA, Circuit Judges.
`
`

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`Case: 17-1665
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`IXI IP, LLC V. SAMSUNG ELECTRONICS CO., LTD.
`
`REYNA, Circuit Judge.
`
`Samsung Electronics CO., Ltd., Samsung Electronics
`America, Inc., and Apple Inc. filed a petition to institute
`an inter partes review of certain claims of US. Patent
`No. 7,039,033. The Patent Trial and Appeal Board insti-
`tuted review that resulted in a final written decision that
`
`the reviewed claims are invalid. Patent owner IXI IP,
`LLC appeals the final written decision. We find that the
`Patent Trial and Appeal Board’s decision is supported by
`substantial evidence. We affirm.
`
`I.
`
`THE ’033 PATENT
`
`Appellant IXI IP, LLC (“IXI”) owns US. Patent No.
`7,039,033 (“the ’033 patent”), titled “System, Device And
`Computer Readable Medium For Providing A Managed
`Wireless Network Using Short-Range Radio Signals.”
`The ’033 patent is directed to “a system that accesses
`information from a wide area network (‘WAN’), such as
`the Internet, and local wireless devices in response to
`short-range radio signals.” ’033 patent col. 4 11. 8—511. The
`system includes a wireless gateway device (i.e., a cell-
`phone), which is coupled to a cellular network, which in
`turn connects to the Internet through a carrier backbone.
`Id. col. 4 11. 36—39, 49—54, Fig. 1. The cellphone also forms
`part of a personal area network (“PAN”), which is a local
`network made up of the cellphone and one or more termi-
`nal devices, such as a laptop computer, a personal digital
`assistant (PDA), or a printer.
`Id. col. 4 11. 17—25. The
`system disclosed in the ’033 patent allows the terminal
`devices of the PAN to access the cellular network through
`the cellphone.
`Id. Abstract. Thus, the ’033 patent dis-
`closes a system that contains both a PAN and a WAN,
`connected via the cellphone. Id. col. 411. 8—19.
`
`Software architecture for the cellphone may include
`network management software including,
`inter alia, 3
`PAN application server.
`Id. col. 5 1. 61—001. 6 l. 5, col. 6
`ll. 36—42, col. 6 11. 58—-63, Figs. 4, 53.
`In turn, the PAN
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`application server includes a service repository software
`component, which allows applications that run on the
`cellphone or the terminal devices to discover what ser-
`vices are offered by the PAN, and to determine the char-
`acteristics of the available services.
`Id. col. 10 11. 1—9,
`col. 12 11. 9—14, Fig. 7; see also id. col. 12, 11. 33—67 (enu-
`merating the many functions of the service repository
`software component).
`
`independent
`Appellant and Appellees agree that
`claim 1 is representative of all challenged claims. Claim 1
`recites:
`
`1. A system for providing access to the Inter-
`net, comprising:
`
`a first wireless device, in a short distance
`wireless network, having a software com-
`ponent to access information from the In-
`ternet by communicating with a cellular
`network in response to a first short-range
`radio signal, wherein the first wireless de-
`vice communicates with the cellular net-
`
`work and receives the first short-range
`radio signal; and,
`
`a second wireless device, in the short dis-
`tance wireless network,
`to provide the
`first short-range radio signal,
`
`wherein the software component includes
`a network address translator
`software
`
`component to translate between a first In-
`ternet Protocol (“IP”) address provided to
`the first wireless device from the cellular
`
`network and a second address for the sec-
`
`ond Wireless dcvicc provided by the first
`wireless device,
`
`wherein the software component includes
`a service repository software component to
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`identify a service provided by the second
`wireless device.
`
`7d. col. 1511. 40—59.
`
`H. PRIOR.ART
`
`Samsung Electronics Co., Ltd., Samsung Electronics
`America,
`Inc., and Apple Inc.
`(collectively, “Samsung”)
`filed a petition to institute an inter partes review (“IPR”)
`of certain claims of the ’033 patent on the basis of the
`following prior art references: PCT Publication No. WO
`01/76154 to Marchand (“Marchand”); K. Arnold et al., The
`JiniTM Specification, Addison-Wesley (“JINI Spec”); U.S.
`Patent No. 6,560,642 to Nurmann (“Nurmann”); U.S.
`Patent No. 6,771,635 to Vilander, filed Mar. 27, 2000,
`issued Aug. 3, 2004 (“Vilander”); Handley et al., Request
`For Comments 2543 SIP: Session Initiation Protocol, The
`Internet
`Society
`(“RFC 2543”);
`and U.S. Patent
`No. 6,836,474 to Larsson (“Larsson”).
`
`titled “Ad-hoc
`to this appeal, Marchand,
`Relevant
`Network and Gateway,” discloses “an ad-hoc network and
`a gateway that provides an interface between external
`wireless IP networks and devices in the ad-hoc network.”
`
`Marchand, p. 1 11. 5—7. The ad-hoc network, also called
`“Bluetooth Piconet,” is a PAN that includes a gateway
`device (i.e., a cellphone) and other terminal devices such
`as a laptop computer or a printer. See id. p. 3, 11. 22—30.
`The devices on the ad-hoc network can communicate via
`
`Id. Abstract, p. 7 11. 9—11. The
`Bluetooth radio link.
`cellphone acts “as a gateway between the ad-hoc network
`and a 3G wireless IP network [] such as the General
`Packet Radio Service (GPRS) network.” Id. p. 7 11. 12—14.
`
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`The ad-hoc network utilizes Bluetooth, IP, and JINI1
`technologies to enable its terminal devices to access the
`cellular network through the cellphone.
`Id. p. 7 11. 7—9.
`For IP address translation, IP packets from the GPRS are
`received at the cellphone through its public IP address,
`and are then forwarded to the private IP address of the
`terminal device on the ad-hoc network.
`Id. p. 7 11. 14—16.
`Address translation in the opposite direction is handled
`similarly.
`Id. p. 7 11. 16—17. “JINI (Java) technology is
`utilized to publish and share services between the devic-
`es” in the ad-hoc network, and this technology “provid[es]
`the capability for an application [] to discover, join, and
`download services [] from a JINI LUS [“Lookup Service”].”
`Id. p. 6 11. 3—4, 21—22. “The LUS contains a list of availa-
`ble services provided by other devices on the network.”
`Id. p. 3 11. 11—12. Devices in the ad-hoc network “an-
`nounce not only value-added services, but also their
`attributes and capabilities to the network,” whereupon
`these services are published through the LUS.
`Id. p. 3
`11. 12—15, p. 10 11. 17—18. The LUS also provides interfac-
`es for services that are available to the devices in the ad-
`
`hoc network. Id. p. 311. 13—14, p. 811. 12—15.
`
`For example, Figure 4 of Marchand depicts “a simpli-
`fied functional block diagram of a connection between two
`devices such as the laptop computer [] and the [cell]phone
`[] utilizing the ad-hoc network.” Id. p. 7 11. 26—28. The
`cellphone publishes in the Bluetooth Piconet
`the call
`control services that it offers “[u]tilizing the JINI Lookup
`Service (LUS).” Id. p. 8 11. 11—12.
`
`JINI is a specific architecture “designed for de-
`1
`ploying and using services in a network." J ,A, 523.
`
`

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`museum/mu
`m-uoc m
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`x mm
`p M
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`F!G. 4
`
`III. PTAB PROCEEDING
`
`Samsung filed a petition to institute an IPR of claims
`1, 4—7, 12, 14, 15, 22, 23, 25, 28, 34, 39, 40, 42, and 46 of
`the ’033 patent.
`Samsung Elccs. Co. v. IXI IP, LLC,
`IPR2015—1444, Paper No. 27, at 1 (P.T.A.B. Dec. 21, 2016)
`(“Final Written Decision”). The Patent Trial. and Appeal
`Board (“the Board”) instituted review on all challenged
`claims. Id. at 2.
`
`The Board determined that Samsung established by a
`preponderance of the evidence that Marchand, Vilander,
`and Nurmann teach every limitation of claim 1. Id. at 16.
`The Board found that Marchand teaches a “first wireless
`
`in a short distance wireless network, having a
`device,
`software component to access information from the Inter-
`net by communicating with a cellular network in response
`to a firm short-range radio s1gnal,“ as recited in claim 1.
`Id. at 18, 16, 19—20. The Board mapped the terminal
`devices in Marchand’s ad-hoc network, such as the laptop
`computer and printer,
`to the “second wireless device”
`recited in claim 1.
`Id. at 14, 16-20. The Board found that
`the IP packets sent among devices in Marchand’s ad-hoc
`network over a short-range radio link (e.g., Bluetooth
`
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`Piconet) correspond to the “first short-range radio signal”
`as recited in claim 1. Id.
`
`The Board further determined that Marchand disclos-
`
`es a network address translator to translate between a
`
`first
`
`IP address and a second IP address based on
`
`Marchand’s description of translating and forwarding
`between public and private IP addresses.
`Id. Citing
`Vilander’s implementation of a device on the cellular
`network to allocate the public IP address to the cellphone,
`the Board found that a person of ordinary skill in the art
`(“POSITA”) would have modified Marchand in View of
`Vilander such that the public IP address of the cellphone
`was provided by the cellular network. Id. The Board also
`found that a POSITA would have modified Marchand in
`
`view of Nurmann such that the cellphone provides the
`private IP addresses to the terminal devices on the local
`area network. Id. at 14, 16, 19—20.
`
`The Board also found that Marchand’s disclosure of
`the JINI LUS met the limitation of the recited “service
`
`repository software component [that] identif[ies] a service
`provided by the second wireless device” of claim 1.
`Id. at
`15—20. The Board considered and rejected IXI’s argument
`that Marchand does not teach a JINl LUS located on the
`
`testimony from both
`cellphone after weighing expert
`parties.
`Id. at 16—20.
`The Board determined that
`“Marchand would have informed an ordinarily skilled
`artisan that the ‘service repository software component’
`may be disposed in the ‘first wireless device [i.e.,
`the
`cellphone].’” Id. at 20.
`
`Thus, the Board concluded that claim 1 would have
`been obvious over the combination of Marchand, Vilander,
`and Nurmann under 35 U.S.C. §103(a).
`Id. at 23—24.
`The Board also found the remaining challenged claims
`invalid as obvious. Id. at 42.
`
`

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`IV. DISCUSSION
`
`A.
`
`A claim is unpatentable under 35 U.S.C. § 103(a) if
`the differences between the claimed subject matter and
`the prior art are such that the subject matter, as a whole,
`would have been obvious at the time the invention was
`
`made to a POSITA to which said subject matter pertains.2
`KSR Int’l Co. v. Teleflex Inc., 550 US. 398, 406 (2007).
`Obviousness is a question of law with underlying factual
`determinations, including: (1) the scope and content of the
`prior art; (2) any differences between the claimed subject
`matter and the prior art; (3) the level of skill in the art;
`and (4) objective evidence of nonobviousness. Graham. 0.
`John Deere Co. ofKan. City, 383 US. 1, 17—18 (1966). We
`review the Board’s legal conclusions without deference
`and its factual findings for substantial evidence. Ken-
`nametal, Inc. v. Ingersoll Cutting Tool CO., 780 F.3d 1376,
`1381 (Fed. Cir. 2015). Additionally, issues relating to a
`motivation to combine prior art references and a reasona-
`ble expectation of success are both questions of fact.
`Intelligent Bio-Sys., Inc. v. Illumina Cambridge Ltd., 821
`F.3d 1359, 1366 (Fed. Cir. 2016).
`
`Substantial evidence is “such relevant evidence as a
`
`reasonable mind might accept as adequate to support a
`conclusion.” Universal Camera Corp. v. NLRB, 340 US.
`474, 477 (1951) (quoting Consol. Edison Co. U. NLRB, 305
`US. 197, 229 (1938)); see also In re Gartside, 203 F.3d
`1305, 1312 (Fed. Cir. 2000). “Where two different conclu-
`
`The Leahy-Smith America Invents Act, Pub. L.
`2
`No. 112-29,
`§ 3(0), 125 Stat. 284, 287 (2011)
`(“AIA”),
`amended 35 U.S.C. § 103. Because the ’033 patent has an
`effective filing date before the effective date of the appli-
`cable AIA amendments, we refer to the pre-AIA version of
`§ 103 throughout this opinion.
`
`

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`sions may be warranted based on the evidence of record,
`the Board’s decision to favor one conclusion over the other
`
`is the type of decision that must be sustained by this court
`as supported by substantial evidence.”
`In re Bayer Ak-
`tiengesellschaft, 488 F.3d 960, 970 (Fed. Cir. 2007) (citing
`In re Jolley, 308 F.3d 1317, 1329 (Fed. Cir. 2002)).
`
`B.
`
`IXI asserts that claim 1 is representative and that its
`arguments “with respect to claim 1 are applicable to all
`claims subject to this appeal.” Appellant Br. 8. The
`parties also stipulate that the single issue on appeal is
`whether a POSITA would read Marchand as implicitly
`describing an implementation in which the JINI’ LUS,
`which identifies services provided on the network,
`is
`located on the gateway device, i.e., the cellphone. Appel-
`lant Reply Br. 1; Appellee Br. 1.
`
`Samsung acknowledges that “Marchand does not ex-
`pressly state that [the] JINI LUS is located on [a] mobile
`phone.”
`Final Written Decision, at 15. Nonetheless,
`Samsung contends, and the Board agreed, that a POSITA
`would read Marchand to understand that JINI LUS may
`be located on the cellphone.
`Id. at 18—20. We conclude
`that substantial evidence supports the Board’s finding.
`
`First, Marchand discloses that the cellphone provides
`other devices on the network with the necessary software
`to enable those devices to use the phone’s call control
`service. Marchand explains that the cellphone can act as
`a call-control server for client devices in the ad-hoc net-
`
`work to allow these devices to, for example, place tele-
`phone Calls. See Marchand, p. 6 l. 27—p. 7 l. 2. “Utilizing
`the JINI Look-Up Service (LUS),” the cellphone “‘pub-
`1ish[es]’ .
`.
`. the call control services that it offers.” Id. p. 8
`11.
`11—12.
`The cellphone also “includes an inter-
`face/Application Programming Interface (API),” which is
`software that “enables” other network devices to use the
`
`phone’s services, and “this API
`
`is downloaded to the
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`Bluetooth device involved in an external wireless call in
`
`order to have the device behave as a slave device toward
`
`Id. p. 6
`the mobile phone[,] which is the master.”
`11. 27—31 (emphasis added). According to the JINI Spec,
`Marchand’s JINI call control API qualifies as a JINI
`proxy object. See J .A. 532 (explaining that, in one exam-
`ple, “the proxy object is a driver for the printer that is
`downloaded on demand”). Based on these disclosures, the
`Board’s determination that a POSITA “would have con-
`
`sidered Marchand‘s call control API to be a lel proxy
`object” is reasonable and supported by substantial evi-
`dence. Final Written Decision, at 19; see also J .A. 240—41.
`
`the Board correctly determined that JINI
`Second,
`proxy objects, such as the cellphone’s JINI call control
`API, “are stored in a LUS for use when a client wants
`access to a service.” Final Written Decision, at 19. Sam-
`sung’s expert stated that a POSITA would read Marchand
`as “describing an implementation in which the JINI LUS
`is located on the mobile phone gateway.”
`Id. (quoting
`J.A. 240 fil 38). In particular, Samsung’s expert explained
`that a POSITA would understand that the API software
`
`downloaded from the cellphone “correSpunds to a service
`object stored in a JINI LUS.” J.A. 240 ll 38. Samsung’s
`expert further explained that “[a]s described in the JINI
`Spec, for a given service, the LUS stores a proxy object
`for the service,” and “[w]hen a client wants to access that
`service, the client downloads the proxy object from the
`LUS.” Id.
`
`The JINI Spec. corroborates the testimony from Sam-
`sung’s expert, showing that a client who wants to use a
`service (e.g., a printing service) downloads the software to
`use the service (the proxy object) from the LUS. Thus, it
`is reasonable for a POSITA to interpret Marchand to
`disclose an implementation where the LUS is included on
`the cellphone because Marchand discloses
`that
`the
`API—which corresponds to a JINI proxy object—is down-
`loaded from the cellphone, and, according to the JINI
`
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`Spec., JINI proxy objects are downloaded from a LUS.
`Final Written Decision, at 16.
`Substantial evidence
`therefore supports the Board’s finding that a POSITA
`would read Marchand to understand that the JINI API is
`
`stored in the LUS in the cellphone. 7d. at 19.
`
`The Board also determined that Marchand implicitly
`discloses
`that
`its Cellphone has a LUS because,
`in
`Marchand’s system, all of the network devices publish
`their services when the cellphone connects to the local ad-
`hoc network and the cellular network.
`Id. at 16.
`
`Marchand explicitly states that this is how its system
`works: when the devices are close enough for
`the
`“[cell]phone [to] connect[] to the Bluetooth Piconet as well
`as to the wireless network," then “all of the devices on the
`
`Piconet publish the services they can provide to the other
`devices
`through the JINI LUS.” Marchand, p.
`10
`11. 13—18.
`If the cellphone does not contain a LUS, there
`would be no need for other network devices to publish (or
`republish) their services to the LUS when the cellphone
`connects. Final Written Decision, at 16. Thus, as Sam-
`sung’s expert explained and the Board agreed, “this
`disclosure would also lead a POSITA to conclude that
`
`Marchand teaches that the JINI LUS is located on the
`
`[cell]phone.” J .A. 240—41 1| 39.
`
`IXI argues that Marchand expressly discloses that the
`LUS is on the laptop.
`IXI’s arguments rely heavily on
`Marchand’s Figure 4, reproduced above, which appears to
`disclose a LUS within the laptop computer.
`IXI contends
`that “Marchand’s only express disclosure of the LUS’s
`location squarely shows the LUS in the laptop computer.”
`Appellant Br. 36.
`
`The Board considered and explicitly rejected this ar-
`gument after examining Marchand and considering
`expert
`testimony from both IXI and Samsung.
`Final
`Written Decision, at 18 (“We do not agree Marchand’s
`disclosure should be read so narrowly .
`.
`. .”). The Board
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`noted that “Marchand’s Figure 4 is merely exemplary and
`[] nothing in Marchand limits or precludes the inclusion of
`a LUS in the gateway mobile phone.”
`Id. at 20. We
`agree.
`
`Marchand describes Figure 4 as “a simplified func-
`tional block diagram of a connection between a laptop
`computer and a mobile phone utilizing the ad-hoc network
`of FIG. 3.” Marchand, p. 5 11. 29—30, p. 7 11. 26—28.
`Marchand does not provide that Figure 4 is the only way
`that the two devices—the cellphone and the laptop—can
`be connected, nor does Marchand exclude other imple-
`mentations.
`See Final Written Decision, at 20.
`For
`example, Figure 4’s implementation does not preclude the
`cellphone from having a LUS. As the Board found, a
`POSITA “would have known, at least, that it was possible
`to have multiple LUSs in a network.”
`Id. The Board
`relies on the JINI Spec, which states that:
`
`Each Jini system is built around one or more
`lookup services. The lookup service is where ser-
`vices advertise their availability so that you can
`find them. There may be one or more lookup ser-
`vices running in a network.
`
`the Board’s
`J.A. 530 (emphases altered). As a result,
`conclusions that (1) Marchand discloses other implemen-
`tations that were separate from what is shown in Fig-
`ure 4, and (2) Marchand does not prohibit a configuration
`where a L‘US is located on both the laptop and the cell-
`phone are reasonable and supported by substantial evi-
`dence.
`
`IXI also argues that locating the LUS on the cellphone
`would have rendered the system inoperable. According to
`IXI, Marchand’s ad-hoc network is a Bluetooth network,
`which only allows the LUS to be on the master device;
`“Marchand discloses that the LUS is located on the lap,
`top,
`the laptop is the master” of the ad-hoc network.
`Appellant Br. 46.
`IXI argues that‘because the cellphone
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`is the master device of a subnetwork consisting of the
`cellphone and devices requesting the cellphone’s call
`control services,
`it “cannot be the master device in the
`broader Bluetooth” ad-hoc network because a Bluetooth
`
`Id.
`device can only act as a master in a single network.
`47—48. The Board correctly rejected this argument. The
`Board found that Marchand discloses that the cellphone is
`the master device of the broader ad-hoc network:
`
`If multiple LUSs are possible) and if a LUS must
`be disposed on a master device, as IXI contends,
`then Marchand’s teaching that a gateway mobile
`phone is a master supports Petitioner’s contention
`that Marchand suggests disposing a LUS in the
`gateway mobile phone.
`
`Final Written Decision, at 20 (citations omitted). We
`agree. Marchand expressly discloses that:
`
`The present invention establishes three new inter-
`faces or Application Programming Interfaces
`(APIS) between the slave device placing the call
`and the master mobile phone. .
`.
`. This interface
`enables any of
`the Bluetooth devices on the.
`Piconet to behave as a slave device toward the
`
`mobile phone which is the master.
`
`(emphases added).
`3
`28—p. 8 l.
`1.
`7
`Marchand, p.
`Marchand does not disclose any subnetwork of the ad-hoc
`network that contains the cellphone and terminal devices
`(e.g.,
`laptop, printer). Thus,
`the Board’s determination
`that a POSITA reading Marchand would understand that
`the cellphone is the master of the ad-hoc network and
`contains the LUS is reasonable and supported by sub-
`stantial evidence.
`
`V. CONCLUSION
`
`We have considered. IXI’s other arguments, but find
`them unpersuasive. We affirm the Board’s decision that
`
`

`

`Case: 17-1665
`
`Document: 44-1
`
`Page: 14
`
`Filed: 09/10/2018
`
`(14 06 17)
`
`14
`
`IXI IP, LLC V. SAMSUNG ELECTRONICS CO., LTD.
`
`the challenged claims of the ’033 patent are invalid as
`obvious under 35 U.S.C. § 103(a).
`
`AFFIRMED
`
`COSTS
`
`No costs.
`
`

`

`Case: 17-1665
`
`Document: 44-2
`
`Page: .1
`
`Filed: 09/10/2010
`
`(:15 UI 17)
`
`UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
`
`NOTICE OF ENTRY OF
`
`JUDGMENT ACCOMPANIED BY OPINION
`
`OPINION FILED AND JUDGMENT ENTERED: 09/10/2018
`
`The attached opinion announcing the judgment of the court in your case was filed and judgment was entered on
`the date indicated ab0ve. The mandate will be issued in due course.
`
`Information is also provided about petitions for rehearing and suggestions for rehearing en banc. The questions
`and answers are those frequently asked and answered by the Clerk's Office.
`
`No costs were taxed in this appeal.
`
`Regarding exhibits and visual aids: Your attention is directed Fed. R. App. P. 34(9) which states that the clerk
`may destroy or dispose of the exhibits if counsel does not reclaim them within a reasonable time after the clerk gives
`notice to remove them. (The clerk deems a reasonable time to be 15 days from the date the final mandate is issued.)
`
`FOR THE COURT
`
`/s/ Peter R. Marksteiner
`
`Peter R. Marksteiner
`Clerk of Court
`
`17-1665 - IXI IP, LLC v. Samsung Electronics Co., Ltd.
`United States Patent and Trademark Office, Case No. |PR2015-01444
`
`

`

`Case: 17-1665
`
`Document: 44-3
`
`Page: 1
`
`Filed: 09/10/2018
`
`(10 of 17)
`
`
`
`PETER R. MARKSTEINER
`CLERK OF COURT
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE FEDERAL CIRCUIT
`
`7 17 MADISON PLACE, N.W.
`WASHINGTON, DC. 20439
`
`CLERK’S OFFICE
`202-275-8000
`
`Information Sheet
`
`Petitions for Rehearing and Petitions for Hearing and Rehearing En Banc
`
`1. When is a petition for rehearing appropriate?
`
`The Federal Ciiuuil. grants few petitions for rehearing each year. These petitions for
`
`rehearing are rarely successful because they typically fail to articulate sufficient
`
`grounds upon which to grant them. Of note, petitions for rehearing should not be used
`
`to reargue issues previously presented that were not accepted by the merits panel
`
`during initial consideration of the appeal. This is especially so when the court has
`
`entered a judgment of affirmance without opinion under Fed. Cir. R. 36. Such
`
`dispositions are entered if the court determines the judgment of the trial court is based
`
`on findings that are not clearly erroneous, the evidence supporting the jury verdict is
`
`sufficient, the record supports the trial court’s ruling, the decision of the administrative
`
`agency warrants affirmance under the appropriate standard of review, or the judgment
`or decision is without an error of law.
`
`2. When is a petition for hearing/rehearing en banc appropriate?
`
`En banc consideration is rare. Each three-judge merits panel is charged with deciding
`
`individual appeals under existing Federal Circuit law as established in precedential
`
`opinions. Because each merits panel may enter precedential opinions, a party seeking
`
`en banc consideration must typically show that either the merits panel has (1) failed to
`
`follow existing decisions of the US. Supreme Court or Federal Circuit precedent or (2)
`
`followed Federal Circuit precedent that the petitioning party now seeks to have
`
`overruled by the court en banc. Federal Circuit Internal Operating Procedure #13
`
`identifies several reasons when the Federal Circuit may opt to hear a matter en banc.
`
`3. Is it necessary to file either of these petitions before filing a petition for
`
`a writ certiorari in the US. Supreme Court?
`
`No. A petition for a writ of certiorari may be filed once the court has issued a final
`
`judgment in a case.
`
`For additional information and filing requirements, please refer to Fed.
`Cir. R. 40 (Petitions for Rehearing) and Fed. Cir. R. 35 (Petitions for,
`
`
`
`Hearing or Rehearing En Banc).
`
`Revised August 21, 2018
`
`

`

`Case: 17-1665
`
`Document: 44-4
`
`Pagezl
`
`Filed:09/10/2018
`
`(1701‘13’)
`
`
`
`PETER R. MARKSTEINER
`CLERK OF COURT
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE FEDERAL CIRCUIT
`
`717 MADISON PLACE, N.W.
`WASHINGTON, DC. 20439
`
`CLERK’S OFFICE
`202-275-8000
`
`Information Sheet
`
`Filing a Petition for a Writ of Certiorari
`
`There is no automatic right of appeal to the Supreme Court of the United States from
`
`judgments of the Federal Circuit. Instead, a party must file a petition for a writ of
`
`certiorari which the Supreme Court Will grant only when there are compelling reasons. See
`
`Supreme Court Rule 10.
`
`Time. The petition must be filed in the Supreme Court of the United States within 90 days
`
`of the entry of judgment in this Court or within 90 days of the denial of a timely petition for
`
`rehearing. The judgment is entered on the day the Federal Circuit issues a final decision in
`
`your case. The time does not run from the issuance of the mandate. See Supreme Court
`Rule 13.
`‘
`
`Fees. Either the $300 docketing fee or a motion for leave to proceed in forma pauperis with
`
`an affidavit in support thereof must accompany the petition. See Supreme Court Rules 38
`and 39.
`
`Authorized Filer. The petition must be filed by a member of the bar of the Supreme Court
`
`of the United States or by the petitioner as a self-represented individual.
`
`Format of a Petition. The Supreme Court Rules are very specific about the content and
`
`formatting of petitions. See Supreme Court Rules 14, 33, 34. Additional information is
`
`available at https;/[y_vww,§upremecourt.gov/filingandrules/rules guidanceaspx.
`
`Number of Copies. Forty copies of a petition must be filed unless the petitioner is
`
`proceeding in forma pauperis, in which case an original and ten copies of both the petition
`
`for writ of certiorari and the motion for leave to proceed in forma pauperis must be filed.
`
`See Supreme Court Rule 12.
`
`Filing. Petitions are filed in paper at Clerk, Supreme Court of the United States. 1 First
`
`Street, NE, Washington, DC 20543.
`
`Effective November 13, 2017, electronic filing is also required for filings submitted by
`
`parties represented by counsel. Scc Suprcmc Court Rule 29.7. Additional information
`
`about electronic filing at the Supreme Court is available at
`
`https://www.supremecourt.gov/filingandrules/electronicfilingaspx.
`
`No documents are filed at the Federal Circuit and the Federal Circuit provides no
`
`information to the Supreme Court unless the Supreme Court asks for the information.
`Revised August 21, 2018
`
`