Customedia Technologies, LLC v. Dish Network Corporation, Dish Network LLC

United States Court of Appeals
for the Federal Circuit
______________________
CUSTOMEDIA TECHNOLOGIES, LLC,
Appellant
v.
DISH NETWORK CORPORATION, DISH NETWORK
LLC,
Appellees
______________________
2019-1001
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Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. CBM2017-
00019.
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ON MOTION
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RAYMOND WILLIAM MORT , III, The Mort Law Firm,
PLLC, Austin, TX, for appellant.
ELIOT D AMON WILLIAMS , Baker Botts LLP, Palo Alto,
CA, for appellees. Also represented by G EORGE HOPKINS
G UY , III; ALI D HANANI, MICHAEL HAWES Houston, TX.
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P ER CURIAM .
O R D E R

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CUSTOMEDIA TECHNOLOGIES, LLC v. DISH NETWORK
CORPORATION
2
Customedia Technologies, LLC moves to vacate and re-
mand in light of this court’s recent decision in Arthrex, Inc.
v. Smith & Nephew, Inc., No. 2018-2140 (Fed. Cir. Oct. 31,
2019). That decision vacated and remanded for the matter
to be decided by a new panel of Administrative Patent
Judges (“APJs”) at the Patent Trial and Appeal Board after
this court concluded that the APJs’ appointments violated
the Appointments Clause. Customedia’s motion seeks to
assert the same challenge here.
We conclude that Customedia has forfeited its Appoint-
ments Clause challenge. “Our law is well established that
arguments not raised in the opening brief are waived.”
SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312,
1319 (Fed. Cir. 2006) (citing Cross Med. Prods., Inc. v. Med-
tronic Sofamor Danek, Inc., 424 F.3d 1293, 1320–21 n.3
(Fed. Cir. 2005)). That rule applies with equal force to Ap-
pointments Clause challenges. See, e.g., Island Creek Coal
Co. v. Wilkerson, 910 F.3d 254, 256 (6th Cir. 2018); Turner
Bros., Inc. v. Conley, 757 F. App’x 697, 699–700 (10th Cir.
2018); see also Arthrex, slip op. at 29 (emphasizing that Ap-
pointments Clause challenges are not jurisdictional and
that the court was granting relief only when the party had
properly raised the challenge on appeal). Customedia did
not raise any semblance of an Appointments Clause chal-
lenge in its opening brief or raise this challenge in a motion
filed prior to its opening brief. Consequently, we must
treat that argument as forfeited in this appeal.
Accordingly,
I T I S O RDERED T HAT :
The motion to vacate and remand is denied.

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CUSTOMEDIA TECHNOLOGIES, LLC v. DISH NETWORK
CORPORATION
3
F OR THE COURT
November 1, 2019 /s/ Peter R. Marksteiner
Date Peter R. Marksteiner
Clerk of Court

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