Customedia Technologies, LLC v. Dish Network Corporation, et al.

Six days prior to Customedia’s oral argument before the Federal Circuit, the court decided Arthrex, Inc. v. Smith & Nephew, Inc., 941 F.3d 1320 (Fed. Cir. 2019), holding that Administrative Patent Judges (APJs) on the Patent Trial and Appeals Board (PTAB) were appointed in violation of the Appointments Clause. The next day Customedia raised an Appointments Clause challenge based on the intervening change in the law. In less than three hours, the Federal Circuit issued a precedential order refusing to apply the Arthrex ruling because Customedia did not raise the challenge in its opening brief. The questions presented are:

1. Whether a court of appeals can invoke forfeiture to refuse to address an Appointments Clause violation in a pending appeal despite an intervening change in law.

2. Whether the PTAB exceeded its statutory authority under the Leahy-Smith America Invents Act and deprived Customedia of due process when the PTAB changed the petitioner’s asserted grounds for review in the final written decision.

3. Whether claims to computer systems reciting the addition of specific computer hardware, which alters and interferes with the conventional operation of the computer system, are directed to patent-eligible subject matter within the meaning of 35 U.S.C § 101. (I)