Eplus, Inc. v. Lawson Software, Inc.

United States Court of Appeals
for the Federal Circuit
______________________
EPLUS, INC.,
Plaintiff-Appellee
v.
LAWSON SOFTWARE, INC.,
Defendant-Appellant
______________________
2013-1506, 2013-1587
______________________
Appeals from the United States District Court for the
Eastern District of Virginia in No. 09-CV-0620, Senior
Judge Robert E. Payne.
______________________
ON PETITION FOR REHEARING EN BANC
______________________
Before PROST, Chief Judge, NEWMAN, LOURIE, DYK,
MOORE, O’MALLEY, REYNA, WALLACH, TARANTO, and
HUGHES, Circuit Judges. ∗
Opinion concurring in the denial of the petition for re-
hearing en banc filed by Circuit Judge DYK, in which
Chief Judge PROST joins.
∗
Circuit Judge Chen did not participate.
2 EPLUS, INC. v. LAWSON SOFTWARE, INC.
Opinion dissenting from the denial of the petition for
rehearing en banc filed by Circuit Judge NEWMAN, in
which Circuit Judges O’MALLEY and WALLACH join.
Opinion dissenting from the denial of the petition for en
banc rehearing filed by Circuit Judge MOORE, in which
Circuit Judges O’MALLEY, REYNA, and WALLACH join.
Opinion dissenting from the denial of the petition for en
banc rehearing filed by Circuit Judge O’MALLEY, in which
Circuit Judge WALLACH joins.
PER CURIAM.
ORDER
Appellee ePlus, Inc. filed a combined petition for
panel rehearing and rehearing en banc. A response to the
petition was invited by the court and filed by appellant
Lawson Software, Inc. The petition and response were
referred to the panel that heard the appeal, and thereaf-
ter the petition and response were referred to the circuit
judges who are in regular active service. A poll was
requested taken and failed.
IT IS ORDERED THAT:
The petition for rehearing en banc is denied.
The mandate of the court will issue on June 25, 2015.
FOR THE COURT
June 18, 2015 /s/ Daniel E. O’Toole
Date Daniel E. O’Toole
Clerk of Court
United States Court of Appeals
for the Federal Circuit
______________________
EPLUS, INC.,
Plaintiff-Appellee
v.
LAWSON SOFTWARE, INC.,
Defendant-Appellant
______________________
2013-1506, 2013-1587
______________________
Appeals from the United States District Court for the
Eastern District of Virginia in No. 09-CV-0620, Senior
Judge Robert E. Payne.
______________________
DYK, Circuit Judge, with whom PROST, Chief Judge, joins,
concurring in the denial of the petition for rehearing en
banc.
The court correctly decides today that this case does
not warrant rehearing en banc. Here we respond briefly to
a few points raised by the dissents in the denial of en banc
review.
First, the division between the majority and dissent in
this case is essentially about whether the applicable
provisions of the injunction were final. As we explained in
the majority panel opinion, the injunction was not final at
the time the claims were cancelled, since we had remand-
ed “for the district court to consider what changes are
2 EPLUS, INC. v. LAWSON SOFTWARE, INC.
required to the terms of the injunction, consistent with
this opinion,” ePlus, Inc. v. Lawson Software, Inc., 700
F.3d 509, 523 (Fed. Cir. 2012). On remand, the parties
had disputed the scope of the injunction, and the scope of
the injunction was being challenged on a second appeal.
Review of the finality here is not “necessary to secure or
maintain uniformity of the court’s decisions” nor does it
“involve[] a question of exceptional importance.” Fed. R.
App. P. 35(a).
Second, assuming the injunction was not final, the
majority opinion reflects nothing more than application of
well-established law. It is clear from Worden v. Searls,
121 U.S. 4 (1887), that civil contempt sanctions for violat-
ing an injunction that is not final must be set aside where
the underlying patent is invalidated. The right to fines
“was, if it existed at all, founded on [the] right to the
injunction, and that was founded on the validity of [the]
patent.” Id. at 25. Judge Moore complains that this deci-
sion is “unfair,” see Moore Diss. Op. at 3, but does not
explain why the judiciary should award compensatory
damages for a non-final injunction based on an invalid
patent. “Invalidity is an affirmative defense that can
preclude enforcement of a patent against otherwise in-
fringing conduct. . . . [I]f the patent is indeed invalid, and
shown to be so under proper procedures, there is no
liability.” Commil USA, LLC v. Cisco Sys., Inc., No. 13–
896, slip op. at 11 (May 26, 2015) (internal quotation
marks, citations omitted). In fact, without finality present
here, it would be “manifestly unjust” to allow ePlus to
recover from its invalid patent “when the rest of the
industry is not impeded by the patents.” Mendenhall v.
Barber-Greene Co., 26 F.3d 1573, 1583 (Fed. Cir. 1994).
Third, the dissents suggest that a PTO proceeding is
“unravel[ing]” a district court judgment, Moore Diss. Op.
at 2, or a judicial ruling is being “nullif[ied]” by “a subse-
quent decision of the Patent and Trademark Office,”
EPLUS, INC. v. LAWSON SOFTWARE, INC. 3
Newman Diss. Op. at 5. This is incorrect. The cancellation
at the PTO was finally affirmed by this court. See In re
ePlus, Inc., 540 F. App’x 998 (Fed. Cir. 2013). As we have
repeatedly held, when a challenger to a patent fails to
meet its burden in district court, “the court will not find
the patent ‘valid,’ only that ‘the patent challenger did not
carry the ‘burden of establishing invalidity in the particu-
lar case before the court.’” In re Baxter Int’l, Inc., 678 F.3d
1357, 1364 (Fed. Cir. 2012) (quoting In re Swanson, 540
F.3d 1368, 1377 (Fed. Cir. 2008)). Thus, “a prior holding
of validity is not necessarily inconsistent with a subse-
quent holding of invalidity.” Swanson, 540 F.3d at 1377
(quoting Stevenson v. Sears Roebuck & Co., 713 F.2d 705,
710 (Fed. Cir. 1983)).
Fourth, nothing in the record of this case suggests the
accused infringer was trying to engage in any delay or
abuse of process. Not even the patent holder in this ap-
peal argued that there was any intentional delay or abuse
of process by the accused infringer.
United States Court of Appeals
for the Federal Circuit
______________________
EPLUS, INC.,
Plaintiff-Appellee
v.
LAWSON SOFTWARE, INC.,
Defendant-Appellant
______________________
2013-1506, 2013-1587
______________________
Appeals from the United States District Court for the
Eastern District of Virginia in No. 09-CV-0620, Senior
Judge Robert E. Payne.
______________________
NEWMAN, Circuit Judge, with whom O’MALLEY and
WALLACH, Circuit Judges, join, dissenting from denial of
the petition for rehearing en banc.
I respectfully dissent from the court’s refusal to re-
hear this case en banc. Several issues warrant the court’s
attention, for they raise fundamental concerns of the
finality of judgments, of the relation between branches of
government, of judicial responsibility, and of consistency
with the regional circuits in procedural law.
I
The panel majority holds that the district court’s and
this court’s judgments were not final, and on this ground
rules that non-final judicial judgments are subject to
2 EPLUS, INC. v. LAWSON SOFTWARE, INC.
overrule by subsequent holdings of the Patent and
Trademark Office. I start with the question of finality of
the adjudications of infringement and contempt.
The district court, after a jury verdict of infringement,
enjoined further infringement of the claims of the three
ePlus patents in suit, including claim 26 of U.S. Patent
No. 6,023,683 (“the ‘683 patent”). The district court
enjoined infringement until expiration of the ‘683 patent,
the last to expire of the patents, expiration date February
8, 2017. ePlus, Inc. v. Lawson Software, Inc., No. 3:09-cv-
620, 2011 WL 2119410, at *24 (E.D. Va. May 23, 2011).
The district court found irreparable injury and that the
balance of harms strongly favored ePlus, and that there
was no adequate alternative remedy at law. Id. at *16.
The court extensively explored the evidence and applica-
ble factors, and stated that “without the prohibitive force
of an injunction and, of course, the availability of judicial
sanctions for violations thereof, [ePlus] would be engaged
in a constant action to police Lawson’s conduct.” Id. at
*12. The district court denied Lawson’s request for a stay
of the permanent injunction. ePlus, Inc. v. Lawson Soft-
ware, Inc., No. 3:09-cv-620, 2011 WL 2119413, at *7 (E.D.
Va. May 24, 2011)., and this court denied Lawson’s mo-
tions for stay, ePlus, Inc. v. Lawson Software, Inc., 424 F.
App'x 947 (Fed. Cir. 2011) and 431 F. App'x 920 (Fed. Cir.
2011).
On appeal to the Federal Circuit, we affirmed the
judgment as to claim 26 of the ‘683 patent including the
injunction, and reversed as to the other four claims. We
remanded “to consider what changes are required to the
terms of the injunction, consistent with this opinion. In
all other respects, we affirm.” ePlus, Inc. v. Lawson
Software, Inc., 700 F.3d 509, 523 (Fed. Cir. 2012).
The district court then found that Lawson’s assertedly
modified products continued to infringe, and issued an
order of civil contempt. ePlus Inc. v. Lawson Software,
EPLUS, INC. v. LAWSON SOFTWARE, INC. 3
Inc., 946 F. Supp. 2d 449 (E.D. Va. 2013). Meanwhile, the
Patent & Trademark Office on reexamination held claim
26 invalid, and this court summarily affirmed. In re
ePlus, Inc., 540 F. App'x 998 (Fed. Cir. 2013).
The issue before us is not whether claim 26 is en-
forceable against Lawson for future infringement, after
the PTO invalidation; the issue is whether the earlier
contempt order became retrospectively cancelled, as to
past violations of the injunction. The panel so holds, by
split decision.
In the panel’s dissenting opinion, Judge O’Malley cor-
rects the panel majority’s error in describing the judicial
rulings of infringement as “not final” rulings. From the
district court judgment and JMOL, and through the
Federal Circuit’s affirmance, claim 26 was finally held
infringed. Infringement was enjoined by permanent
injunction, and the defendant’s violation of the injunction
was the subject of the civil contempt order.
The panel majority is incorrect in stating that the
Federal Circuit “overturned” the injunction. Maj. Op. at
3. The Federal Circuit affirmed the injunction. ePlus,
700 F.3d at 522. Our final rulings concerning claim 26
were not the subject of remand to the district court.
Indeed, on remand the district court pointed out that it
could not reconsider the injunction, as Lawson requested,
because of the mandate rule. ePlus, 946 F. Supp. 2d at
465 (“Under the mandate rule, the Court is prohibited
from retrospectively dissolving the injunction as to issues
that were affirmed by the Federal Circuit.”).
The concurrence states that “the injunction was not
final at the time the claims were cancelled.” Conc. Op. at
1. That is a misstatement. The injunction was final. The
injunction was modified by the district court, not vacated.
“[T]he injunction . . . is modified.” ePlus Inc. v. Lawson
Software, Inc., No. 3:09cv620 (E.D. Va. June 11, 2013)
(Order Modifying the Order of Injunction Entered on May
4 EPLUS, INC. v. LAWSON SOFTWARE, INC.
23, 2011). “The injunction ORDER . . . shall remain in
effect in all other respects.” Id. 1
The panel majority’s ruling is at odds with all of the
regional circuits. The regional circuits have dealt with
issues of finality in a variety of circumstances; and the
uniform rule is that a final judgment is final as to its
subject matter, even if other items remain for considera-
tion or for remand. For example, in Qualcomm Inc. v.
FCC, the circuit court affirmed enforcement of the district
court’s judgment despite intervening legislative change,
even though the case was remanded following appeal.
1 The original injunction order shows that it was in
effect as of the day it issued, with a short delay for
healthcare providers. “[I]t is hereby ORDERED that the
Defendant, Lawson Software, Inc. . . . are permanently
enjoined from directly or indirectly making, using, offer-
ing to sell or selling.” ePlus Inc. v. Lawson Software, Inc.,
No. 3:09cv620 (E.D. Va. May 23, 2011) (Order Granting
Permanent Injunction). “It is further ORDERED that
Lawson . . . [is] required to notify all customers who have
purchased all or any of the Infringing Products and Ser-
vices.” Id. at 3-4. “It is further ORDERED that this
injunction is to remain in effect until . . . February 8,
2017.” Id. at 4. “[F]or the 277 customers who previously
purchased the infringing systems detailed above before
the verdict and who provide only healthcare services, this
order will not take effect until November 23, 2011.” Id. at
4.
The concurrence cites the remand for “what changes
are required in the terms of the injunction.” Indeed there
was a remand, for some patent claims were no longer at
issue. But this did not affect the finality of the injunction
as to claim 26, final in the district court, and final on
appeal, and never cancelled as the district court observed.
946 F. Supp. 2d at 465.
EPLUS, INC. v. LAWSON SOFTWARE, INC. 5
181 F.3d 1370, 1378-79 (D.C. Cir. 1999). In Pye v. De-
partment of Transportation of the State of Georgia, the
circuit court stated that“[t]o be final a judgment does not
have to dispose of all matters involved in a proceeding.”
513 F.2d 290, 292 (5th Cir. 1975) (internal citations
omitted). In Zdanok v. Glidden Co., the circuit court
stated that “we see no reason why in an appropriate case
a ruling that is final on the issue of liability should not
preclude the party against whom the decision ran from
presenting further evidence on the issue there finally
determined.” 327 F.2d 944, 955 (2d Cir. 1964). In Bullen
v. de Bretteville, the circuit court stated: “A case remand-
ed for further hearing or over which jurisdiction is re-
tained for some purposes may nonetheless be final as to
other issues determined.” 239 F.2d 824, 829 (9th Cir.
1956), overruled on other grounds by Lacey v. Maricopa
County, 693 F.3d 896 (9th Cir. 2012).
The panel majority departs from extensive precedent
in its position that the judgment of infringement was not
final. This aspect alone warrants en banc correction.
II
There is no support in precedent for nullifying judicial
rulings of infringement and injunction, retroactively,
based on a subsequent decision of the Patent and Trade-
mark Office. The PTO, conducting reexamination of the
’683 patent, held claim 26 invalid; this court affirmed by
non-precedential opinion, In re ePlus, Inc., 540 Fed. App’x
998 (Fed. Cir. 2013). ePlus does not seek to recover for
infringement after the PTO’s invalidity judgment was
sustained. That is not the issue now before us.
The issue is the retroactive dissolution of the con-
tempt order for violation of the injunction during the
period before claim 26 was invalidated. The injunction
had been entered by the district court almost three years
before our affirmance of the decision of the PTO. There
was no ruling that the injunction had been improperly
6 EPLUS, INC. v. LAWSON SOFTWARE, INC.
imposed, and there was no ruling that it was not violated.
Yet the panel majority today holds that the contempt is
retroactively voided as if it never existed, although the
patent was valid and infringed when the injunction was
issued and when it was violated. This holding is contrary
to the precedent of all of the regional circuits on similar
issues.
A party cited for contempt for violation of a perma-
nent injunction cannot attack the validity of the underly-
ing injunction. As discussed by the First Circuit:
First, a party cited for contempt of a perma-
nent injunction may not then collaterally attack
the validity of the underlying decree. N.L.R.B. v.
Local 282, Int’l Bhd. of Teamsters, Etc., 428 F.2d
994 (2d Cir. 1970). This rule applies at least
where the party has had an opportunity to chal-
lenge the decree on appeal, See C. Wright & A.
Miller, Federal Practice and Procedure, § 2960
(1973), and when the order is not so vague that
the party had no notice that its conduct would be
considered contemptuous, see International Long-
shoreman’s Ass., Local 1291 v. Philadelphia Ma-
rine Trade Ass., 389 U.S. 64, 76, 88 S. Ct. 201, 19
L. Ed. 2d 236 (1967).
N.L.R.B. v. Union Nacional De Trabajadores, 611 F.2d
926, 928 n.1 (1st Cir. 1979); see, e.g., TiVo Inc. v. EchoStar
Corp., 646 F.3d 869, 885-86 (Fed. Cir. 2011) (en banc)
(refusing to allow “vagueness” challenge to injunction’s
validity during contempt proceeding).
Here, Lawson “had an opportunity to challenge the
decree on appeal,” Union Nacional, supra, and the Feder-
al Circuit sustained the decree. The panel majority now
proposes that United States v. United Mine Workers of
America, 330 U.S. 258 (1947), requires a different out-
come. The majority proposes that United Mine Workers
holds that civil contempt orders, unlike criminal contempt
EPLUS, INC. v. LAWSON SOFTWARE, INC. 7
orders, can be retrospectively eradicated. That is a distor-
tion of the Court’s holding. United Mine Workers involved
a temporary restraining order, not a permanent injunc-
tion, and related to fines for criminal and civil contempt
for past wartime actions of the labor union and its lead-
ers. The Second Circuit explained:
We recognize that a party facing charges of civil
contempt has a right to challenge the validity of a
temporary injunction which he violated whereas a
party facing charges of criminal contempt does
not. See United States v. United Mine Workers,
330 U.S. 258, 294-295, 67 S. Ct. 677, 91 L. Ed. 884
(1947). However, where, instead of a temporary
injunction, a permanent injunction is violated, the
interest in enforcement consists not only of the
need to maintain respect for court orders and for
judicial procedures, but also of the need to avoid
repetitious litigation.
N.L.R.B. v. Local 282, Int'l Bhd. of Teamsters, 428 F.2d
994, 999 (2d Cir. 1970). The court further reasoned:
This latter interest, the interest which the doc-
trine of res judicata serves in all of its applica-
tions, militates in favor of barring collateral
attacks upon permanent injunctions in civil con-
tempt proceedings as well as in criminal ones.
Here Local 282 could have sought review of the
breadth of the injunction we issued by a petition
for a rehearing, by a petition for a writ of certiora-
ri, or conceivably by a petition for a writ of prohi-
bition. These remedies do not appear to have
been attempted and, of course, the litigation of is-
sues which have been or could be litigated in a
given case should reach repose when final judg-
ment in that case is entered.
Id. Collateral attack on a previously issued permanent
injunction contravenes routine considerations of res
8 EPLUS, INC. v. LAWSON SOFTWARE, INC.
judicata and finality. The panel majority’s contrary
ruling conflicts with all of the circuits in comparable
circumstances.
District courts are required to apply the procedural
law of their regional circuit in matters not unique to
patent law. If injunctions and civil contempt are to re-
ceive uniquely different treatment in patent cases, we
should act en banc to say so.
III
It is beyond debate that Lawson was required to com-
ply with the injunction, for the injunction was neither
temporary nor erroneously issued. An injunction is
deemed erroneously issued when the order was “reversed
by the issuing court or on appeal, or if its issuance ex-
ceeded the power of the issuing court.” Reliance Ins. Co.
v. Mast Const. Co., 84 F.3d 372, 376 (10th Cir. 1996). The
Tenth Circuit rejected the argument that expiration of a
valid temporary restraining order rendered the order
“erroneous” or “invalid” under United Mine Workers for
purposes of civil contempt. Id.
In Bethlehem Mines Corp. v. United Mine Workers of
Am., 476 F.2d 860 (3d Cir. 1973), the Third Circuit,
applying United Mine Workers, determined that “errone-
ously issued” means that “if the underlying order is
reversed or vacated during the orderly course of appellate
review, then a judgment of civil contempt, though not
criminal contempt, must also be set aside.” Id. at 865.
Such reversal or vacatur did not here occur.
In Klett v. Pimm, 965 F.2d 587 (8th Cir. 1992), the
Eighth Circuit reviewed a civil contempt order for viola-
tion of an injunction that had been rendered moot by a
subsequent Act of Congress. The court determined that
“if the underlying injunction abates for a reason that does
not go to the jurisdiction of the issuing court, a compensa-
tory civil contempt may still be brought” because “[t]he
EPLUS, INC. v. LAWSON SOFTWARE, INC. 9
fact that it became moot after the Act was passed does not
affect its validity prior to the Act’s passage.” Id. at 590.
Here the injunction was indisputably valid.
Worden v. Searls, 121 U.S. 14 (1887), relied on by the
panel majority, does not disturb these principles. There
the Court, during its review of an infringement decree
“and all interlocutory decrees and orders,” id. at 25,
determined that “the order for the preliminary injunction
was unwarranted as a matter of law,” id. at 26, and
reversed the injunction and thus the accompanying con-
tempt. 2 In contrast, here there is no ruling that the order
for the injunction was unwarranted as a matter of law, or
that it was not a permanent injunction, or that the con-
tempt was improper.
Here the injunction was valid and final when the con-
tempt occurred. An injunction may later be dissolved, but
this does not erase past contempt. Today’s decision places
the Federal Circuit at odds with the procedural law of the
nation.
IV
Although it is a matter of considerable import, review
of the relationship between the PTO and the courts is not
the primary issue in this request for rehearing en banc. I
have focused on the issues of finality of judgment and
retroactivity of dissolution of a valid contempt citation,
matters bearing important weight of judicial process.
2 Contrary to the concurrence, Worden does not con-
trol on these facts. Worden involved an injunction that
was determined on appeal to be erroneously issued in the
first place. Worden says nothing about retroactively
nullifying an injunction that was affirmed on appeal or
reopening an issue that was already decided by this court.
10 EPLUS, INC. v. LAWSON SOFTWARE, INC.
CONCLUSION
The panel majority’s view of finality, and the panel
majority’s retrospective vacatur of a civil contempt ruling,
are contrary to the general law. If special rules are to
apply in patent cases, en banc assessment is required. I
respectfully dissent from the court’s refusal to rehear
these issues en banc.
United States Court of Appeals
for the Federal Circuit
______________________
EPLUS, INC.,
Plaintiff-Appellee
v.
LAWSON SOFTWARE, INC.,
Defendant-Appellant
______________________
2013-1506, 2013-1587
______________________
Appeals from the United States District Court for the
Eastern District of Virginia in No. 09-CV-0620, Senior
Judge Robert E. Payne.
______________________
MOORE, Circuit Judge, with whom O’MALLEY, REYNA, and
WALLACH, Circuit Judges, join, dissenting from the denial
of the petition for rehearing en banc.
I agree with Judge O’Malley’s dissent. The facts of
this case conclusively establish that the injunction was
final as to claim 26. For that reason, the district court’s
contempt order should have been affirmed.
The majority reaches too far back to unravel a long
settled, fully resolved aspect of the case. After an expen-
sive, multi-year litigation with a full trial which Defend-
ant lost, it ought not to be able to turn around and rely on
the PTO to undo the prior district court litigation. To
allow this encourages defendants to scrap and fight to
keep underlying litigation pending in the hope that they
2 EPLUS, INC. v. LAWSON SOFTWARE, INC.
will fare better with the PTO 1 and then be able to unravel
the district court judgment against them. See also Frese-
nius USA, Inc. v. Baxter Int’l, Inc., 721 F.3d 1330 (Fed.
Cir. 2013); Versata Computer Indus. Solutions, Inc. v.
SAP AG, 564 F. App’x 600 (Fed. Cir. 2014).
In this case, for example, the Defendant had a full
and fair opportunity to litigate validity. It lost and judg-
ment was entered against it. An injunction was entered.
The injunction was affirmed on appeal, at least as to
claim 26. The district court then entered a contempt
judgment against the Defendant for violating that injunc-
tion. After the verdict against it, the PTO cancelled claim
26. And this court has now held that the entire district
court proceeding, including the contempt judgment can be
unwound. I have no problem with the prospective elimi-
nation of an injunction following a determination that the
patent at issue is invalid. But when a defendant has been
adjudicated to be in contempt of a post-appealed final
injunction, as in this case, subsequent invalidation of the
patent cannot unravel the contempt judgment. The
contempt judgment is directed at redressing the violation
by the defendant of the court order. The district court
here properly determined that the injunction was final
and that the Defendant was in contempt.
1 And it is not surprising that defendants pursue
PTO review proceedings given that there exists a lower
burden of proof for invalidity (preponderance versus clear
and convincing) and given that the PTO uses a claim
construction construct—broadest reasonable interpreta-
tion—that makes invalidation based on prior art easier.
And while I question the wisdom and propriety of the
applicability of the broadest reasonable construction
standard in IPR proceedings, this is not the appropriate
case for consideration of this standard.
EPLUS, INC. v. LAWSON SOFTWARE, INC. 3
I do not agree with the majority that the injunction in
this case was not final. More generally, there are prob-
lems with a system which permits defendants to snatch
victory from the already closed jaws of defeat. Whether
these problems are to be resolved by the Supreme Court
through its precedent on finality or through Congress,
this sort of gamesmanship ought to be curtailed. I have
no problem with the dual track system Congress has
created, but for at least a subset of cases, defendants are
abusing the process by doing both. This is wasteful of
judicial, executive, and party resources, and it is just
plain unfair. Congress intended the IPR/CBM/reexam
route to be an alternative to district court litigation of
certain validity issues, not duplicative of them.
United States Court of Appeals
for the Federal Circuit
______________________
EPLUS, INC.,
Plaintiff-Appellee
v.
LAWSON SOFTWARE, INC.,
Defendant-Appellant
______________________
2013-1506, 2013-1587
______________________
Appeals from the United States District Court for the
Eastern District of Virginia in No. 09-CV-0620, Senior
Judge Robert E. Payne.
______________________
O’MALLEY, Circuit Judge, with whom WALLACH, Circuit
Judge, joins, dissenting from the denial of the petition for
rehearing en banc.
For the reasons detailed in my dissent to the revised
panel opinion, ePlus, Inc. v. Lawson Software, Inc., Nos.
13-1506, -1587 (June 18, 2015), and those articulated by
Judge Newman and Judge Moore in their respective
dissents from the denial of the petition for rehearing en
banc, I believe we should hear this case en banc to reeval-
uate our finality jurisprudence and address the constitu-
tional concerns raised by both this case and Fresenius
USA, Inc. v. Baxter International, Inc., 721 F.3d 1330
(Fed. Cir. 2013).