• CAFC in ALVARADO HOSPITAL.  A dissent by Judge Newman.
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    CAFC in ALVARADO HOSPITAL. A dissent by Judge Newman.

    One must always keep in mind that the CAFC has jurisdiction in non-patent areas.
    On 22 August 2017:


    Because Prime Hospitals’ breach of contract claim is
    fundamentally a suit to enforce a contract and it does not
    arise under the Medicare Act, we hold that the Court of
    Federal Claims has exclusive jurisdiction over that claim
    under the Tucker Act, 28 U.S.C. § 1491. We also hold
    that the Court of Federal Claims does not have jurisdiction,
    however, over Prime Hospitals’ alternative claims
    seeking declaratory, injunctive, and mandamus relief.
    Accordingly, we affirm the district court’s transfer order
    in-part, reverse-in-part, and remand for further proceedings.

    Judge Newman dissented:


    I respectfully dissent from the ruling that the Medicare
    Act’s jurisdictional assignment to the district courts
    does not apply when there is an offer of settlement of a
    Medicare reimbursement claim.

    (…)
    Nonetheless, my colleagues endorse the transfer of
    this action from the district court to the Court of Federal
    Claims under the Tucker Act, reasoning that the statutory
    assignment of Medicare jurisdiction does not apply
    when the issue includes a proposal for settlement of a
    Medicare claim. However, as precedent has resolved,
    settlement of a Medicare claim does not remove the
    statutory Medicare Act jurisdiction. See Pines Residential
    Treatment Ctr., Inc. v. United States, 444 F.3d 1379 (Fed.
    Cir. 2006)

  • Two CAFC judges in Nidec case:  we question whether the practice of expanding panels
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    Two CAFC judges in Nidec case: we question whether the practice of expanding panels

    The outcome was that appellant lost:


    Nidec Motor Corporation (“Nidec”) appeals a final
    written decision of the Patent Trial and Appeal Board
    (“Board”) in an inter partes review (“IPR”). The Board
    determined that claims 1–3, 8, 9, 12, 16, and 19 of U.S.
    Patent No. 7,626,349 (the “’349 Patent”) are invalid as
    anticipated or obvious. We affirm.

    What the CAFC did not decide:


    Both Broad Ocean and the Director argue that the
    Board properly applied the joinder and time bar statutes
    to allow joinder and institution in this case. Nidec disagrees.
    We need not resolve this dispute. Nor need we
    address the Director’s and Broad Ocean’s arguments that
    the Board’s joinder determination is non-appealable in
    light of 35 U.S.C. § 314(d)’s bar of judicial review for
    institution decisions or Nidec’s argument that the Board’s
    practice of expanding panels violates due process. For the
    reasons set forth below, we affirm the Board’s conclusion
    that all of the challenged claims are unpatentable as
    obvious over Bessler and Kocybik. Because there is no
    dispute that Broad Ocean timely filed the First Petition
    (containing the obviousness ground), the issues on appeal
    relating only to the Board’s joinder determination as to
    anticipation ultimately do not affect the outcome of this
    case. Both parties agree that, if we affirm as to obviousness,
    we need not address Nidec’s argument that various
    procedural aspects of the Board’s joinder decision require
    reversal of its holding concerning anticipation by Hideji.
    See Oral Arg. at 1:28–2:33 (June 8, 2017), available at
    http://oralarguments.cafc.uscourts.gov/default.aspx?fl=20
    16-2321.mp3 (Nidec agreeing that we need not address
    the anticipation ground based on Hideji in any respect if
    we determine that the Board was correct in its obviousness
    determination under Bessler and Kocybik).

    Nidec loses:


    The Board concluded that “the use of
    sinewave commutation and independent Q and d axis
    currents would have provided predictable results to
    address known problems associated with other types of
    motors.” J.A. 29. Nidec asks us to reweigh the evidence
    the Board used to make its determination, which we may
    not do. See In re Warsaw Orthopedic, Inc., 832 F.3d 1327,
    1334 (Fed. Cir. 2016).

    The opinion was per curiam. There was a two judge
    concurring opinion which included:


    Although we do not decide the issues here, we
    have serious questions as to the Board’s (and the Director’s)
    interpretation of the relevant statutes and current
    practices.

    (…)

    The issue in this case is whether the time bar provision
    allows a time-barred petitioner to add new issues,
    rather than simply belatedly joining a proceeding as a
    new party, to an otherwise timely proceeding. Section
    315(c) does not explicitly allow this practice. We think it
    unlikely that Congress intended that petitioners could
    employ the joinder provision to circumvent the time bar
    by adding time-barred issues to an otherwise timely
    proceeding, whether the petitioner seeking to add new
    issues is the same party that brought the timely proceeding,
    as in this case, or the petitioner is a new party.

    Of some interest as to the expanded panel:

    Nidec alleges that the two administrative judges added
    to the panel were chosen with some expectation that
    they would vote to set aside the earlier panel decision.
    The Director represents that the PTO “is not directing
    individual judges to decide cases in a certain way.” Director
    Br. 21 (quotation marks omitted). While we recognize
    the importance of achieving uniformity in PTO decisions,
    we question whether the practice of expanding panels
    where the PTO is dissatisfied with a panel’s earlier decision
    is the appropriate mechanism of achieving the desired
    uniformity. But, as with the joinder issue, we need
    not resolve this issue here. Nor need we address the
    predicate issue of appealability.