In Lazare Kaplan International, Inc., v. Photoscribe Technologies, Inc. et al., No. 2012-1247 (Fed. Cir. April 19, 2013), the Federal Circuit held that the failure to file a cross-appeal barred re-litigation of matters that defendant had lost below and had not properly appealed. Lazare was a patent infringement case in which the trial court found that the patent was valid but that defendant did not infringe. Plaintiff appealed the finding of non-infringement, but defendant did not cross-appeal the finding of validity. The Federal Circuit ruled for plaintiff on certain claim construction issues, and remanded the case for reassessment of the trial court’s non-infringement findings. On remand, the trial court granted defendant relief from the original judgment of validity, and granted defendant’s motion for summary judgment, finding the patent invalid. On the second appeal, the Federal Circuit held that the trial court abused its discretion by allowing defendant to reargue the validity issues, holding that defendant’s failure to cross-appeal on the validity issues in the first instance was fatal.
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Issues not appealed cannot be re-litigated on remand
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