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Federal Circuit on Mootness: “We do not play dice.”

Like any gambling, betting on an appeal can be risky.

Allflex USA v. Avid Identification is an appeal from an declaratory-judgment action for unenforceability and non-infringement for six different patents related to RFID tags for pets. The district court made three rulings that Avid appealed: (1) that Avid “should be sanctioned” for not disclosing pending reexamination proceedings; (2) granting summary judgment of non-infringement, and (3) granting partial summary judgment after concluding that Avid’s failure to fully disclose prior public use and offers to sell one of its products was material to the inequitable conduct. Dice

Then the parties settled—sort of. The Federal Circuit explains:

By its terms, the agreement resolved all claims and issues between the parties other than those raised in this appeal. As part of the settlement agreement, Avid agreed to pay $6.55 million to Allflex. The parties further agreed that Avid would be free to appeal the three issues referred to above—[non-infringement, materiality of prior public use and offers, and the “should be sanctioned” ruling.] Avid also reserved the right to appeal the district court’s claim constructions and any other “underlying orders, objections, opinions, and rulings.” For its part, Allflex retained the right to contest any appeal on the merits, but the settlement explicitly barred Allflex from disputing the existence of a live case or controversy. The agreement further provided that, “[i]n the event AVID is successful in overturning any of such findings,” Allflex would pay Avid $50,000, i.e., the settlement amount to be paid to Avid would be reduced from $6.55 million to $6.5 million.

After the settlement, the district court entered a stipulated order, which dismissed the action with prejudice “with the exception of the following findings, which are final and ripe for appellate review.” The district court listed non-infringement, materiality, and sanctions as the issues ready for review.

Avid appealed and filed its opening brief. Allflex did not file a brief. Read the rest of this entry

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