Public Patent Foundation, Inc. v. McNeil-Ppc, Inc.

NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
PUBLIC PATENT FOUNDATION, INC.,
Plaintiff-Appellant,
v.
MCNEIL-PPC, INC.,
Defendant-Appellee,
v.
UNITED STATES,
Intervenor-Appellee.
__________________________
2012-1274
__________________________
Appeal from the United States District Court for the
Southern District of New York in No. 09-CV-5471, Judge
Katherine B. Forrest.
__________________________
ON MOTION
__________________________
Before L OURIE, BRYSON, and MOORE, Circuit Judges.
L OURIE, Circuit Judge.
O R D E R
Case: 12-1274 Document: 54 Page: 1 Filed: 05/03/2013

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PUBLIC PATENT FOUNDATION, INC. v. MCNEIL- PPC, INC. 2
Public Patent Foundation, Inc. (PubPat) moves for
summary affirmance. McNeil-PPC, Inc. (McNeil) re-
sponds.
PubPat brought suit in June 2009 against McNeil for
falsely marking and advertising certain products. In
September 2011, Congress enacted the Leahy-Smith
America Invents Act (AIA), which, among other changes,
eliminated standing in false marking cases for third
parties that have not suffered a competitive injury as a
result of the false marking. The change was applied
retroactively to pending false marking cases. As a result
of the changes enacted by the AIA, the district court held
that PubPat no longer had standing to pursue this case
and dismissed the action.
PubPat argues that this court’s decision in Brooks v.
Dunlop Manufacturing Inc., 702 F.3d 624 (Fed. Cir. 2012),
requires summary affirmance of the district court’s judg-
ment. McNeil agrees that Brooks requires affirmance of
the district court’s judgment, but raises concerns about
PubPat’s previous arguments that this case is distin-
guishable from cases such as Brooks because of the timing
of filing.
Summary affirmance of a case “is appropriate, inter
alia, when the position of one party is so clearly correct as
a matter of law that no substantial question regarding the
outcome of the appeal exists.” Joshua v. United States, 17
F.3d 378, 380 (Fed. Cir. 1994). We find that summary
affirmance is appropriate here.
In Brooks, this court held that Congress’s retroactive
application of the false marking provision of the AIA does
not violate the Due Process Clause or the Intellectual
Property Clause of the Constitution. Brooks, 702 F.3d at
625-26. This court has also held that the AIA’s change to
the false marking provision “appl[ies] to all cases, without
Case: 12-1274 Document: 54 Page: 2 Filed: 05/03/2013

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PUBLIC PATENT FOUNDATION, INC. v. MCNEIL- PPC, INC. 3
exception, that are pending on, or commenced on or after,
the date of the enactment” of the AIA. Hall v. Bed Bath &
Beyond, Inc., 705 F.3d 1357, 1373 (Fed. Cir. 2013) (quot-
ing AIA, Pub. L. No. 112-29, §16(b)(4), 125 Stat. 284, 329
(2011)).
Accordingly,
I T I S O RDERED T HAT :
(1) The district court’s judgment is summarily af-
firmed.
(2) Each side shall bear its own costs.
(3) All other pending motions are moot.
F OR T HE COURT
/s/ Jan Horbaly
Jan Horbaly
Clerk
s24
Case: 12-1274 Document: 54 Page: 3 Filed: 05/03/2013

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