Appellate Practice

Fitch Even provides skilled and effective appellate representation before the Federal Circuit and other federal and state appellate courts. Given the Federal Circuit’s exclusive jurisdiction to hear appeals of patent cases from district court litigation and Patent Trial and Appeal Board cases, our appellate lawyers argue on a regular basis before the Federal Circuit and have obtained key decisions that have helped shape intellectual property law.

The firm’s appellate team is well-versed in the rules of appellate procedure and the governing legal precedent. But this is merely a starting place for our success. As with many aspects of intellectual property law, appellate practice frequently turns on mastery of complex facts. Fitch Even lawyers thrive on the details, identifying critical technical differences and emphasizing how they interact with the law and its underlying policies. Our polished appellate briefs and persuasive advocacy during oral arguments reflect this rigorous and meticulous approach.

While the majority of Fitch Even’s appellate work arises from our active federal and state court and PTAB practices, we have also been retained for appeals from cases originally handled by other counsel. We are pleased to partner with co-counsel in the manner best suited to the client’s needs. Fitch Even has also been retained by organizations that have appeared as amicus curiae in important precedent-setting Federal Circuit appeals.

Case Studies

Preserving the Enforceability of Key Patents

Client:  Travel Caddy, Inc.

Problem: Travel Caddy pursued a patent infringement lawsuit involving two patents directed to tool bags manufactured from a unique combination of rigid panels, fabric panels, and a continuous loop binding. The district court found that Travel Caddy’s former attorneys had not advised the U.S. Patent and Trademark Office (USPTO) of the existence of the litigation when one of the two patents was still pending as an application. The court also found that Travel Caddy had improperly claimed small entity status when prosecuting the applications, due to the distribution agreement that it had entered into with an entity that had more than 500 employees. As a result, the district court declared both patents unenforceable as having been procured through inequitable conduct.

Solution: Fitch Even was retained to pursue an appeal in the Court of Appeals for the Federal Circuit seeking to have both findings of inequitable conduct reversed. Upon careful analysis of the trial court record, we identified specific grounds for challenging both rulings as lacking sufficient evidentiary support under the standards established by Federal Circuit precedent.

Result: Following the submission of appellate briefs and oral argument, the Federal Circuit reversed both rulings. The court first held that the existence of pending litigation involving the parent patent was not necessarily material to the related child patent because the litigation did not involve a challenge to patent validity. The court also held that intent to deceive the USPTO had not been established via clear and convincing evidence. With regard to the claim for small entity status, the court also reversed on the grounds that there was no clear and convincing evidence of intent to deceive the USPTO. A well-crafted and executed appellate strategy succeeded in removing the specter of fraud and restoring the enforceability of our client’s patents.

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