Customedia Technologies, LLC v. Dish Network Corporation

United States Court of Appeals
for the Federal Circuit
______________________
CUSTOMEDIA TECHNOLOGIES, LLC,
Appellant
v.
DISH NETWORK CORPORATION, DISH NETWORK
LLC,
Appellees
______________________
2018-2239
______________________
Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. CBM2017-
00023.
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CUSTOMEDIA TECHNOLOGIES, LLC,
Appellant
v.
DISH NETWORK CORPORATION, DISH NETWORK
LLC,
Cross-Appellants
______________________
2018-2240, -2310
______________________
2 CUSTOMEDIA TECHNOLOGIES, LLC v. DISH NETWORK
CORPORATION
Appeals from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. IPR2017-
00454.
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CUSTOMEDIA TECHNOLOGIES, LLC,
Appellant
v.
DISH NETWORK CORPORATION, DISH NETWORK
LLC,
Appellees
______________________
2019-1000
______________________
Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. CBM2017-
00032.
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CUSTOMEDIA TECHNOLOGIES, LLC,
Appellant
v.
DISH NETWORK CORPORATION, DISH NETWORK
LLC,
Cross-Appellants
______________________
2019-1002, -1003, -1027, -1029
______________________
CUSTOMEDIA TECHNOLOGIES, LLC v. DISH NETWORK 3
CORPORATION
Appeals from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in Nos. IPR2017-
00717 and IPR2017-00724.
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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
In each of the above-captioned appeals, Customedia
Technologies, LLC submits a notice of supplemental au-
thority identifying 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 Pa-
tent Judges (“APJs”) at the Patent Trial and Appeal Board
after this court concluded that the APJs’ appointments vi-
olated the Appointments Clause. Customedia’s letters
seek to assert the same challenge here, which the court
construes as a motion to vacate the Board decisions here
and remand in accordance with Arthrex.
We conclude that Customedia has forfeited its Appoint-
ments Clause challenges. “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. Med-
tronic Sofamor Danek, Inc., 424 F.3d 1293, 1320–21 n.3
(Fed. Cir. 2005)). That rule applies with equal force to
4 CUSTOMEDIA TECHNOLOGIES, LLC v. DISH NETWORK
CORPORATION
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 (emphasiz-
ing that Appointments Clause challenges are not jurisdic-
tional and that the court was granting relief only when the
party had properly raised the challenge on appeal). Cus-
tomedia did not raise any semblance of an Appointments
Clause challenge in its opening briefs or raise this chal-
lenge in a motion filed prior to its opening briefs. Conse-
quently, we must treat that argument as forfeited in these
appeals.
Accordingly,
IT IS ORDERED THAT:
The motions to vacate and remand are denied.
FOR THE COURT
November 1, 2019 /s/ Peter R. Marksteiner
Date Peter R. Marksteiner
Clerk of Court