Digest of In re Nokia Inc. and Nokia Corp., No. 2014-133 (Fed. Cir. July 24, 2014) (precedential). On petition for Writ of Mandamus to the United States International Trade Commission. Before Newman, Mayer, and Bryson, per curiam.

Procedural Posture: In a first appeal, the CAFC reversed an order of the ITC finding infringement and remanded for additional proceedings. The ITC found on remand that the petitioners had waived their non-infringement argument, and the petitioners sought a writ of mandamus to compel the ITC to address their non-infringement argument. The CAFC denied the petition for a writ of mandamus.

  • Waiver: The CAFC ruled in the first appeal that Nokia’s non-infringement argument “may be raised on remand.” However, in this second appeal, the CAFC ruled that the Commission was free to consider on remand whether the issue had been waived, because the CAFC had not compelled the Commission to address the non-infringement argument. To the extent petitioners seek to challenge the merits of the ITC’s waiver decision, that argument could be raised on appeal after final judgment.

Newman, dissenting:

  • Waiver: Not only did petitioners not waive its non-infringement argument before the ITC, but the statement by the CAFC in the first appeal that the argument “may be raised on remand” amounted to a mandate compelling the ITC to consider the non-infringement argument on the merits. By refusing to permit the petitioners to make this argument on remand, the ITC defied the CAFC’s mandate.