The following arguments will be available to the public live, both in-person and through online audio streaming. Access information will be available by 9 AM ET each day of argument at: https://cafc.uscourts.gov/home/oral-argument/listen-to-oral-arguments/.

Monday, December 4, 2023, 10:00 A.M.

Copan Italia Spa v. Puritan Medical Products Company LLC, No. 22-1943, Courtroom 402, Panel B

Plaintiffs Copan Italia Spa and Copan Diagnostics Inc. (collectively “Copan”) sued Puritan Medical Products Company LLC, Puritan Diagnostics LLC, Hardwood Products Company LP, and Hardwood Products Company LLC (collectively, “Defendants”) in the District Court of Maine, alleging infringement of U.S. Patent Nos. 8,114,027, 8,317,728, 9,011,358, and 9,173,779, relating to methods of collecting biological specimen using a swab. Defendants moved to dismiss, arguing that the suit is barred by the immunity provision of the Public Readiness and Emergency Preparedness Act (“PREP Act”) as it was producing the patented swabs at issue as part of pandemic countermeasures. The district court denied the motion after allowing Defendants to include the PREP Act as an affirmative defense. In its appeal, Defendants again argue that the suit should be barred while Copan argues that the PREP Act’s immunity applies to losses involving “the administration or use of a covered countermeasure,” which Defendants have not suffered. Copan states that it is not suing for lost profits on any of the swabs sold during the height of the pandemic, but rather only asks for a “fair percentage of the windfall gains” that Defendants have been enjoying while making the patented swabs using the technology invented by Copan.

Monday, December 4, 2023, 10:00 A.M.

Applied Biokinetics LLC v. CVS Pharmacy, Inc., No. 22-2038, Courtroom 203, Panel C

Applied Biokinetics LLC (“ABK”) sued CVS Pharmacy, Inc. (“CVS”) and Mueller Sports Medicine, Inc. (“MSM”) in the Western District of Texas alleging infringement of ABK’s U.S. Patent Nos. 8,216,162, 8,414,511, 8,814,818, 8,834,398, 8,968,229, 10,212,987, and 10,299,953, relating to an orthotic foot support device. The asserted patents were subject to a license which granted MSM exclusionary patent rights and required ABK to obtain consent from MSM before suing a third party. ABK argued that MSM breached the license prior to filing the case against CVS in district court, while CVS argued that the license was still valid and thus could not be sued without MSM’s consent, which was not given. The court dismissed for lack of standing and improper venue per the license. ABK appealed, arguing that the licensing agreement was terminated, but even if it was not, as the patent owner, it has constitutional standing sufficient for the case to continue. CVS, however, argues that the license is still enforceable because its termination status is still an active dispute. CVS argues that under the license agreement, ABK only retains the rights to veto sub-licensing, collect royalties from MSM, and a reversionary interest after the termination of the agreement.

Thursday, December 7, 2023, 10:00 A.M.

In Re Chestek PLLC, No.22-1843, Courtroom 203, Panel L

Chestek PLLC (“Chestek”) filed a trademark application for the mark CHESTEK LEGAL relating to legal services. The Trademark Trial and Appeal Board (“the Board”) refused to register the mark, and subsequently affirmed its refusal, based on Chestek’s noncompliance with the statutory domicile disclosure requirement. Chestek appealed, arguing that the rule requiring applicants to disclose their domicile is arbitrary and capricious and not properly promulgated because it was not subject to a notice-and-comment period. The Director of the USPTO, however, asserts that promulgating the domicile disclosure requirement does not need a notice-and-comment period because it constitutes a new procedural rule, which is exempt from the notice-and-comment requirement. Further, the Director argues that even if the new rule requires a notice-and-comment period prior for its enactment, the rule would still comply with the APA because it is a logical outgrowth of a prior request for comment.