Cisco Systems, Inc., Hewlett Packard Enterprise Co. v. K.mizra LLC

United States Court of Appeals
for the Federal Circuit
______________________
CISCO SYSTEMS, INC., HEWLETT PACKARD
ENTERPRISE CO.,
Appellants
v.
K.MIZRA LLC,
Appellee
______________________
2022-2290, 2023-1183
______________________
Appeals from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in Nos. IPR2021-
00593, IPR2022-00081, IPR2022-00084.
______________________
ON MOTION
______________________
THEODORE M. FOSTER, Haynes and Boone, LLP,
Denver, CO, for appellant Cisco Systems, Inc. Also
represented by EUGENE GORYUNOV, Chicago, IL; DEBRA
JANECE MCCOMAS, DAVID L. MCCOMBS, Dallas, TX;
ANGELA M. OLIVER, Washington, DC.
MANISH MEHTA, Benesch Friedlander Coplan &
Aronoff, Chicago, IL, for appellant Hewlett Packard
Enterprise Co. Also represented by CRISTINA ALMENDAREZ,
SAMUEL RUGGIO.
Case: 22-2290 Document: 61 Page: 1 Filed: 11/19/2024

-- 1 of 3 --

CISCO SYSTEMS, INC. v. K.MIZRA LLC 2
CRISTOFER LEFFLER, Folio Law Group, PLLC, Seattle,
WA, for appellee K. Mizra LLC. Also represented by
STEVEN SKELLEY, CLIFF WIN, II, MOSES XIE; TAREK N.
FAHMI, Ascenda Law Group, PC, San Jose, CA.
______________________
Before DYK, REYNA, and STOLL, Circuit Judges.
REYNA, Circuit Judge.
O R D E R
On August 16, 2024, this court issued an opinion
vacating and remanding to the Patent Trial and Appeal
Board (“Board”) to further consider patentability.
Appellant Cisco Systems, Inc. and Appellant Hewlett
Packard Enterprise Co. then moved under Federal Rule of
Appellate Procedure 42(b) to voluntarily dismiss the
appeal. Appellants provided that their motions were
unopposed and due to settlement. The parties have not
requested that we vacate our opinion. On October 9, 2024,
this court stayed the issuance of the mandate for this
appeal pending the court’s consideration of Appellants’
motions. On October 11, 2024, this court invited the U.S.
Patent and Trademark Office (“PTO”) to comment as to
what further action it deems is appropriate in this appeal.
See 35 U.S.C. § 143. The PTO requested we deny
Appellants’ motions because this court has already entered
its opinion and judgment and denied rehearing. We agree
with the PTO.
This court has previously recognized that even in the
absence of a request to vacate an opinion, granting a
motion to dismiss “at this stage, days before issuance of a
mandate, . . . which would result in a modification or
vacatur of our [] judgment, is neither required nor a proper
use of the judicial system.” TiVo Inc. v. EchoStar Corp.,
429 F. App’x 975, 976 (Fed. Cir. 2011) (en banc) (citations
omitted) (non-precedential order). We see no reason to
Case: 22-2290 Document: 61 Page: 2 Filed: 11/19/2024

-- 2 of 3 --

CISCO SYSTEMS, INC. v. K.MIZRA LLC 3
depart from that principle here, especially given
Appellants filed their motions days before issuance of a
mandate. Moreover, appeals from the Board warrant
additional consideration of the Director’s unconditional
right to intervene. 35 U.S.C. § 143. This is yet another
reason that generally counsels against granting a motion
to dismiss an appeal from the Board after this court has
already decided the appeal.
The parties are of course free upon our remand to the
Board to seek dismissal.
Accordingly,
IT IS ORDERED THAT:
Appellants’ motions to dismiss are denied. The mandate
will issue in due course.
November 19, 2024
Date
FOR THE COURT
Case: 22-2290 Document: 61 Page: 3 Filed: 11/19/2024

-- 3 of 3 --