Mag Instrument, Inc., Appellant, v. the United States International Trade Commission, Appellee,kassnar Imports, Inc.; Brinkmann Corporation; Brinkmanninternational (hong Kong), Ltd.; and J. Baxterbrinkmann International Corporation, Intervenors, 878 F.2d 1443 (Fed. Cir. 1989)

ORDER

This court, in an unpublished opinion, dated February 15, 1989, declined to consider the patent invalidity arguments of intervenor Kassnar Imports, Inc. (Kassnar), on the ground that Kassnar failed to raise this issue in its petition for review of the United States International Trade Commission's (ITC) initial determination. Kassnar petitions this court for rehearing to consider its invalidity arguments, specifically on the issue of public use, 35 U.S.C. § 102(b) (1982).

Under 19 C.F.R. Sec. 210.54(a) (2) (1988), a party who prevails on an issue before the administrative law judge need not raise that issue in its petition for review to preserve it for appeal. Here, Kassnar prevailed on the public use issue and, accordingly, that issue is preserved for appeal to this court.

Accordingly, it is ORDERED that:

(1) Kassnar's petition for rehearing is granted to enable consideration of its patent invalidity arguments, specifically on the issue of public use.

(2) Note 2 of this court's February 15, 1989, opinion is deleted, and recipients of that opinion will be so notified.

(3) The following paragraph is added to this court's opinion preceding the provision for costs:

Kassnar also argues that the ITC erred in finding that the '263 patent is not invalid under 35 U.S.C. § 102(b) (1982). After a careful review of the record and all of the submissions, we conclude that Kassnar has failed to persuade us that the ITC's decision on this issue is not supported by substantial evidence.