Design patent owner, Luv n’ Care, has sought Supreme Court review of the Federal Circuit’s ruling affirming the Patent Trial and Appeal Board’s invalidation of Luv n’ Care’s design patent for a baby sippy cup.  This is the first case on design patents at the PTAB to reach the Federal Circuit, and now the Supreme Court. The Federal Circuit upheld the PTAB’s decision without opinion.

In its petition for certiorari, Luv n’ Care argues that the Federal Circuit failed to address the PTAB’s violation of what Luv n’ Care urges is a “fundamental” rule of administrative procedure and due process—that agencies must not switch theories midstream without giving proper notice and an adequate opportunity to respond.  During the IPR proceeding, Luv n’ Care claims that the PTAB improperly raised two new issues—one in the final hearing, and one in the final written decision—to which it was not given an adequate opportunity to respond.  Luv n’ Care looked to the precedents of ten other Circuit Courts in arguing that the Federal Circuit is out of step on a “vital procedural safeguard.”  The petition also relies on a body of jurisprudence requiring fair play and no unfair surprise.  Luv n’ Care claims that the issues presented in its petition are important because “as the busiest patent litigation tribunal in the country, [the PTAB] needs to understand that limits exist on the issues it may rely upon in its determinations.”