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Last Week in the Federal Circuit (January 4-8): Mooting Your Opponent’s Appeal

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Now that the new year has started, we’re seeing an uptick in precedential opinions.  This week we decided to turn back to patent appeals, taking a look at IPRs and Article III—always a fun topic.

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Last Week in the Federal Circuit (January 4-8): Mooting Your Opponent’s Appeal

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Brian Matsui co-chairs Morrison Foerster’s Appellate and Supreme Court practice. Brian is a go-to appellate advocate for sophisticated clients in complex appeals.Brian has a nationwide appellate practice. He has argued many cases in federal and state appellate courts throughout the country, winning appeals involving commercial disputes, securities litigation and enforcement, government contracts, consumer class actions, and intellectual property. He has led appeals in the D.C., Second, Fourth, Fifth, Ninth, Eleventh, and Federal Circuits. His arguments include significant victories in class action appeals and in appeals for leading financial services companies, with multiple victories in the Ninth Circuit, where he clerked. Brian recently has gone six for seven when representing appellants, including a precedential victory in the Ninth Circuit in a licensing dispute concerning alleged patent misuse. He also argued and won a D.C. Circuit appeal against the Securities and Exchange Commission (SEC) about the retroactivity of part of the Dodd-Frank Act. As a result of Brian’s win, the SEC had to change its enforcement practices against certain securities industry professionals.Clients frequently turn to Brian for his substantial experience with appeals in the Federal Circuit, praising him as “an invaluable advocate in patent matters” (Chambers USA). Brian has won 14 of his last 16 appeals in that Court. His arguments before the Federal Circuit include winning appeals from district courts, the Patent Trial and Appeal Board, and the International Trade Commission. He has handled appeals in a myriad of industries, including mobile devices, pharmaceuticals, medical devices, semiconductors, and software.Brian also plays a key role on trial teams, advising clients on both critical legal issues and appellate preservation. He recently argued and prevailed against a summary judgment invalidity motion in a case involving Chugai Pharmaceutical Co. Ltd.’s revolutionary antibody recycling technology, which ultimately led to a $775 million settlement on the eve of trial for Chugai.A former law clerk for the United States Supreme Court, Brian has authored many briefs in that Court, including on important constitutional and statutory interpretation issues. He often represents clients’ interests in amicus briefs in significant Supreme Court cases affecting the business community.Leading publications have recognized Brian for his appellate skills. The Legal 500 US recommends him for appellate litigation, and the National Law Journal named Brian a “Minority 40 Under 40.”Brian also dedicates significant time to pro bono matters. He argued and won two significant appeals—in the Second and Ninth Circuits—obtaining reversals of judgments that had denied private rights of action under the Child Welfare Act in precedential decisions. Brian also led the Morrison Foerster team who co-counseled a successful Eighth Amendment challenge to Florida’s imposition of a “life without the possibility of parole” sentence to a juvenile offender convicted of a non-homicide crime.For years, Brian chaired the ABA’s seven-person Standing Committee for Amicus Curiae Briefs. He served on the American Intellectual Property Law Association’s amicus committee and co-chaired the National Asian Pacific American Bar Association’s amicus committee. Brian served as an appellate lawyer representative for the Ninth Circuit. Brian also serves on the board of directors for the Lawyers’ Committee for Civil Rights Under Law.Before entering private practice, Brian clerked on the United States Supreme Court for Justice Anthony M. Kennedy. He also clerked for Judge Pamela Ann Rymer in the Ninth Circuit and Judge David F. Levi in the Eastern District of California.While in law school, Brian served as managing editor of Volume 51 of the Stanford Law Review and was elected to the Order of the Coif.<h4>Representative Oral Arguments</h4><ul><li><a href="https://oralarguments.cafc.uscourts.gov/default.aspx?fl=22-1260_02102023.mp3" target="_blank">SNIPR Technologies Ltd. v. Rockefeller University</a> (Fed. Cir.). Prevailed in a precedential decision reversing the Patent Office's interpretation of the America Invents Act (AIA) that subjected patents post-dating the Act to pre-AIA interference proceedings. The decision revived five of SNIPR’s patents related to CRISPR technology</li><li><a href="/resources/video-audio/220114-broadcom-corporation-v-renesas-matsui" target="_self">Renesas Electronics Corporation v. Broadcom Corporation</a> (12:40) (Fed. Cir.). Successfully argued and briefed multiple appeals from an International Trade Commission (ITC) decision and several Patent Trial and Appeal Board decisions related to an ITC investigation initiated by Broadcom involving systems-on-chip powering automobile infotainment systems</li><li><a href="/resources/video-audio/210706-cr-bard-v-medline-industries" target="_self">C.R. Bard Inc. v. Medline Industries, Inc.</a> (0:45) (Fed. Cir.). Won vacatur of three Patent Trial and Appeal Board decisions on obviousness</li><li><a href="https://oralarguments.cafc.uscourts.gov/default.aspx?fl=21-1745_03102022.mp3" target="_blank">Advanced Voice Recognition Systems, Inc. v. Apple Inc.</a> (14:30) (Fed. Cir.). Secured a complete victory in appeal from Patent Trial and Appeal Board that all challenged patent claims were unpatentable</li><li><a href="/resources/video-audio/200515-william-paulus-v-ocera-therapeutics-inc" target="_self">William Paulus v. Ocera Therapeutics, Inc.</a> (13:25) (9th Cir.). Successfully argued and briefed appeal in a putative shareholder class action involving a tender offer</li><li><a href="/resources/video-audio/200410-kurtz-v-costco" target="_self">Kurtz v. Costco Wholesale Corporation </a>(9:23) (2d Cir.). Successfully petitioned for review of a class certification decision, then argued and obtained a remand for the district court to reconsider its certification decision, and an eventual reversal on an injunctive class certification decision</li><li><a href="/resources/video-audio/161117-gregory-bartko-v-sec" target="_self">Gregory Bartko v. SEC</a> (0:53) (D.C. Cir.). Successfully argued and obtained precedential ruling that the Securities and Exchange Commission could not retroactively apply Dodd-Frank’s industry-wide sanctions on securities professionals for certain securities violations</li></ul>

Brian Matsui

Partner

Seth Lloyd is a partner in the Appellate and Supreme Court practice with particular experience arguing and briefing high stakes patent appeals at the Federal Circuit. Seth is a go-to appellate attorney for complex appeals and has argued many cases in federal and state appellate courts across the country. He is especially skilled in appeals at the intersection of law and technology, where he leverages his strong technical background. Clients appreciate Seth’s ability to distill complicated scientific and legal principles into clear and winning arguments. He takes that approach in the Federal Circuit, where he handles appeals from district courts, the Patent Trial and Appeal Board, and the International Trade Commission. Seth’s winning oral arguments include a successful reversal of three PTAB decisions in a consolidated appeal for a computer memory designer. Seth is also co-chair of the Federal Circuit Bar Association’s Administrative Law & Regulatory Committee. Seth regularly practices in the United States Supreme Court. He has drafted petitions and amicus briefs at the certiorari stage, as well as party and amicus briefs at the merits stage. Seth also moots members of the bar for Supreme Court arguments through the Georgetown Supreme Court Institute and is a barrister in the Edward Coke Appellate Inn of Court. In 2025, Seth won the American Cancer Society Cancer Action Network’s Judicial Advocacy Initiative Award for his pro bono work in support of access to healthcare.Before joining Morrison Foerster, Seth served as a law clerk for Judge Richard G. Taranto of the Federal Circuit. He earned his J.D. from Stanford and holds a Ph.D. in electrical engineering, also from Stanford. During his graduate studies, Seth received the National Defense Science and Engineering Graduate Fellowship, published 10 peer-reviewed articles, and co-invented the subject matter of five U.S. patents.<h4>Appellate Arguments</h4><ul><li><a href="/resources/video-audio/251208-cpc-patent-technologies" target="_self">CPC Patent Technologies v. Apple Inc.</a> (14:38) (Fed. Cir.) Argued and won affirmance for inter partes review petitioner in challenge to patent claims to biometric security </li><li><a href="/resources/video-audio/251208-cpc-patent-technologies-v" target="_self">CPC Patent Technologies v. Apple Inc.</a> (13:42) (Fed. Cir.) Argued and won affirmance for inter partes review petitioner in challenge to patent claims to biometric security </li><li><a href="/resources/video-audio/251208-cellspin-soft-v-fitbit-llc" target="_self">Cellspin Soft v. Fitbit LLC </a>(40:48) (Fed. Cir.) Argued on behalf of multiple defendants and won affirmance of summary judgment of noninfringement for patent claims related to wireless communications </li><li><a href="/resources/video-audio/251208-cellspin-soft-vs-fitbit-llc" target="_self">Cellspin Soft v. Fitbit LLC</a> (32:28) (Fed. Cir.) Argued and won dismissal of appeal requesting recusal of district court judge</li></ul><ul><li><a href="/resources/video-audio/220114-renesas-electronics-v-broadcom-corporation" target="_self">Renesas Electronics Corp. v. Broadcom Corp.</a> (00:10) (Fed. Cir.) Argued and won affirmance for inter partes review petitioner in challenge to electronic device claims</li><li><a href="/resources/video-audio/251208-ams-osram-usa-v-renesas" target="_self">ams-OSRAM USA v. Renesas Electronics America </a>(00:12) (Fed. Cir.) Argued and won partial reversal, partial affirmance, and partial vacatur of district court trade secrets decision</li><li><a href="/resources/video-audio/170609-netlist-inc-v-diablo-technologies" target="_self">Netlist, Inc. v. Diablo Technologies, Inc.</a> (02:56) (Fed. Cir.) Argued and won reversal for owner of computer memory patents in appeals from three consolidated inter partes reviews</li><li><a href="/resources/video-audio/200610-google-llc-v-netlist-inc" target="_self">Google LLC v. Netlist, Inc.</a> (13:15) (Fed. Cir.) Argued and won affirmance for owner of computer memory patents in consolidated appeals from decade-long reexamination</li><li><a href="/resources/video-audio/220309-apple-inc-v-mph-technologies" target="_self">Apple Inc. v. MPH Technologies Oy</a> (00:16) (Fed. Cir.) Argued for inter partes review petitioner in challenge to computer security claims</li><li><a href="/resources/video-audio/180808-netlist-inc-v-sandisk-llc" target="_self">Netlist, Inc. v. SanDisk LLC</a> (01:53) (Fed. Cir.) Argued for patent owner in consolidated appeals raising APA challenges to inter partes review decisions</li><li><a href="/resources/video-audio/201026-nicole-k-v-stigdon" target="_self">Nicole K. v. Stigdon</a> (00:16) (7th Cir.) Argued for children in Indiana foster care raising constitutional due process claims</li><li><a href="/resources/video-audio/200306-strike-3-holdings" target="_self">Strike 3 Holdings, LLC v. Doe</a> (21:40) (D.C. Cir.) Argued as court-appointed amicus defending an order refusing a subpoena to unmask an internet subscriber’s identity</li><li><a href="/resources/video-audio/161118-harris-v-mangum" target="_self">Harris v. Mangum</a> (00:02) (9th Cir.) Argued as court-appointed amicus defending indigent prisoner’s right to a guardian ad litem</li></ul><h4>Additional Representative Matters</h4><ul><li>SNIPR Technologies Ltd. v. Rockefeller University (Fed. Cir.) Revived five SNIPR patents related to CRISPR technology after prevailing in a precedential decision that reversed the Patent Office’s interpretation of the America Invents Act (AIA), under which post-AIA patents could be subjected to pre-AIA interference proceedings</li><li>Broadcom Corp. v. International Trade Commission (Fed. Cir.) Successfully defended ITC’s determination of no Section 337 violation in case involving multiple patents directed to system-on-chip technology for automobile infotainment systems</li><li>Chugai Pharmaceutical Co. v. Alexion Pharmaceuticals (D. Del.) Successfully beat back defendant’s push for summary judgment of invalidity for lack of written description on pharmaceutical genus claims, ultimately helping to secure a $775 million settlement for the patent owner</li><li>C.R. Bard Inc. v. AngioDynamics, Inc. (Fed. Cir.) Secured reversal of district court judgment of non-infringement, no willfulness, and invalidity, reviving Bard’s infringement case on three patents</li><li>Washington University v. Wisconsin Alumni Research Foundation (3d Cir.) Successfully defended trial victory for breach of patent licensing agreement and further won judgment entitling Washington University to prejudgment interest</li><li>Nevro Corp. v. Boston Scientific Corp. (Fed. Cir.) Secured reversal for Nevro of district court judgment of invalidity for indefiniteness</li><li>Federal National Mortgage Association v. Zabriskie (9th Cir.) Won reversal for Fannie Mae of a Fair Credit Reporting Act judgment</li><li>Henson v. Santander Consumer USA Inc. (S. Ct.) Represented U.S. Chamber of Commerce and others as amici supporting respondent in unanimous affirmance of Fair Debt Collection Act decision</li><li>BASF Corp. v. Johnson Matthey Inc. (Fed. Cir.) Won reversal of an invalidity ruling against patentee BASF, reviving its patent claims</li><li>C.R. Bard Inc. v. Medline Industries, Inc. (Fed. Cir.) Won vacatur for petitioner of three Patent Trial and Appeal Board decisions on obviousness for patents to medical device technology</li><li>Altayyar v. Etsy, Inc. (2d Cir.) Secured dismissal of securities fraud case for failure to adequately plead falsity</li><li>Bridge & Post, Inc. v. Verizon Communications, Inc. (Fed. Cir.) Secured dismissal because asserted patents claimed unpatentable subject matter</li><li>Sam Francis Foundation v. Christie’s, Inc. (S. Ct.) Successfully preserved Sotheby’s en banc win at the Ninth Circuit based on the dormant Commerce Clause</li><li>Phigenix, Inc. v. Genentech, Inc. (Fed. Cir.) Secured total victory of noninfringement for Genentech</li><li>Deason v. Fujifilm Holdings Corp. (New York Appellate Division, First Department) Secured reversal in major shareholder challenge to corporate acquisition</li><li>V.L. v. E.L. (S. Ct.) As counsel for children’s guardian ad litem, secured reversal of Alabama Supreme Court’s refusal to grant full faith and credit to Georgia judgment recognizing lesbian mother as legal parent</li></ul>