Moot on Appeal: Patentee’s Infringement Disclaimer Remove’s Challenger’s Ability to Appeal IPR

In a split opinion, the Federal Circuit has dismissed ABS Global’s appeal of its failed IPR trial — finding the appeal moot. U.S. Patent No. 8,529,161. The simple story here is that Cytonome sued ABS for infringement of the ‘161 patent but lost on summary judgment of non – infringement.  Cytonome did not pursue an appeal, and expressly “disclaim such an appeal.”

Meanwhile ABS had filed an Inter Partes Review proceeding that resulted in most of the claims being cancelled.  The PTAB did side with the patentee on two of the claims — finding that they had not been proven obvious.  ABS wanted all of the claims invalidated and so appealed to the Federal Circuit.


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