Customedia Technologies,, LLC v. Dish Network Corp., No. 19-1001 (Fed. Cir. 2019)

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In “Arthrex,” the Federal Circuit concluded that the appointments of Administrative Patent Judges (APJs) violated the Appointments Clause and vacated a decision made by a panel of APJs. Customedia sought to assert the same challenge. The Federal Circuit denied a motion to vacate, finding that Customedia forfeited its Appointments Clause challenge. Arguments not raised in the opening brief are waived. Appointments Clause challenges are not jurisdictional and must be properly raised on appeal. Customedia did not raise any semblance of an Appointments Clause challenge in its opening brief or raise this challenge in a motion filed prior to its opening brief.

The court issued a subsequent related opinion or order on November 8, 2019.

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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. CBM201700019. ______________________ 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 remand 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 Appointments 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. Medtronic Sofamor Danek, Inc., 424 F.3d 1293, 1320–21 n.3 (Fed. Cir. 2005)). That rule applies with equal force to 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 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 CORPORATION FOR THE COURT November 1, 2019 Date /s/ Peter R. Marksteiner Peter R. Marksteiner Clerk of Court 3

Primary Holding

An Appointments Clause challenge to the appointments of Administrative Patent Judges was waived by failure to raise the argument in an opening brief.

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